Employment Litigation

A Flowchart outlining the stages of an arbitration under the Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association (AAA), from commencement of the arbitration, through arbitrator appointment, submission of the case to the arbitrator, and award.

A sample complaint that may be used to commence an Americans with Disabilities Act (ADA) failure to accommodate and retaliation civil lawsuit in federal district court. This Standard Document contains integrated drafting notes with important explanations and tips for drafting the complaint's caption, preliminary statement, jurisdiction and venue sections, facts section, legal claims, prayer for relief, and signature block.

A sample complaint that may be used to commence an Age Discrimination in Employment Act (ADEA) discrimination and retaliation civil lawsuit in federal district court. This Standard Document contains integrated drafting notes with important explanations and tips for drafting the complaint's caption, preliminary statement, jurisdiction and venue sections, facts section, legal claims, prayer for relief and signature block.

A Practice Note about adverse action appeals before the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act (CSRA). This Note identifies the adverse actions appealable to the MSPB and the types of federal employees that have MSPB appeal rights, as well as the burdens of proof that apply to the federal agency and the employee. This Note discusses federal law and procedures for federal sector employees.

A Chart for federal sector employment practitioners comparing procedures and due process protections for disciplining and terminating federal employees under the Civil Service Reform Act (CSRA) and related laws.

This Practice Note examines the legal landscape surrounding the collection and use of biometric data. In particular, this Note addresses the common definitions of biometrics, typical commercial uses of biometric data, enacted and proposed legislation governing the use of biometric data, recently filed biometrics class actions and the future of this type of litigation, and best practices for organizations to promote compliance, and minimize enforcement and litigation risk.

An overview of the standards federal district courts in each federal circuit apply when considering whether to enjoin strike activity alleged to violate a collective bargaining agreement (CBA). In Boys Markets, Inc. v. Retail Clerks Union, Local 770, the US Supreme Court interpreted Section 301 of the Labor Management Relations Act (LMRA), which confers jurisdiction on courts to decide breach of CBA lawsuits, and created an exception to the anti-injunction provisions of the Norris-LaGuardia Act (NLA).

This Practice Note addresses the process of applying for Boys Markets preliminary injunctive relief in federal district court. Specifically, this Note covers how to properly draft the documents required to apply for a preliminary injunction, prospective injunction and a temporary restraining order (TRO) against a labor union's strike in violation of a no-strike obligation and a mandatory arbitration clause in a collective bargaining agreement (CBA), based on the US Supreme Court's exception to the Norris-LaGuardia Act's (NLA) anti-injunction provisions in Boys Markets, Inc. v. Retail Clerks Union, Local 770.

This Order to Show Cause may be used to commence an action seeking a preliminary injunction and a temporary restraining order (TRO) against a labor union's strike in violation of a no-strike obligation and a mandatory arbitration clause in a collective bargaining agreement (CBA), based on the US Supreme Court's exception to the Norris-LaGuardia Act's (NLA) anti-injunction provisions in Boys Markets, Inc. v. Retail Clerks Union, Local 770.

This Verified Complaint may be used to commence an action seeking a preliminary injunction, prospective injunction and a temporary restraining order (TRO) against a labor union's strike in violation of a no-strike obligation and a mandatory arbitration clause in a collective bargaining agreement (CBA), based on the US Supreme Court's exception to the Norris-LaGuardia Act's (NLA) anti-injunction provisions in Boys Markets, Inc. v. Retail Clerks Union, Local 770.

A Flowchart outlining the stages of an employment arbitration in the US before the International Institute for Conflict Prevention and Resolution (CPR) under the CPR Employment Arbitration Procedure, from commencement of the arbitration through appointment of the tribunal, discovery, pre-hearing procedures, hearing, and award.

A Practice Note describing the steps for conducting an employment arbitration in the US under the International Institute for Conflict Prevention and Resolution (CPR) Employment Dispute Arbitration Procedure. This Note explains the stages of a CPR employment arbitration both where the employee's agreement to arbitrate is a condition of employment and where the parties agree post-dispute to submit their claims to arbitration.

This Standard Clause can be included in a collective bargaining agreement (CBA) to set out an arbitration procedure for unions and employers to use to resolve disputes about application and interpretation of CBAs that could not be resolved in their grievance procedure. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Standard Clause can be included in a collective bargaining agreement (CBA) to set out a grievance procedure for unions and employers to use to resolve disputes about application and interpretation of CBAs. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Practice Note discusses conciliation with the Equal Employment Opportunity Commission (EEOC). In particular, it discusses statutory requirements, the conciliation process and best practices for employers' and employees' counsel for negotiating with the EEOC. This Note is based on federal law but may also be helpful in negotiations before state or local fair employment practices agencies (FEPAs).

A Practice Note describing the initial consultation process from the plaintiff attorney's perspective and suggested best practices. This Note outlines the steps to be taken before, during and after an initial consultation as well as the related ethics issues under the American Bar Association Model Rules of Professional Conduct. State-adopted ethics rules may impose additional or different requirements and are beyond the scope of this Note.

A Checklist outlining the initial consultation process from the plaintiff attorney's perspective and suggested best practices. This Checklist discusses the pre-consultation preparation, the consultation process, and post-consultation steps for plaintiff-side attorneys.

This resource is under review following an injunction granted by the US District Court for the Eastern District of Texas enjoining the DOL's final rule increasing the minimum salary for most exemptions under the FLSA from $455 to $913 per week. For more information, see Legal Update, DOL's Final Rule Increasing Minimum Salary for FLSA Exemption Enjoined Nationwide: E.D. Texas.A Practice Note addressing wage and hour audits under the Fair Labor Standards Act (FLSA), including preliminary issues private employers should consider, common wage and hour issues to evaluate, options for responding to problems discovered during the audit, and best practices going forward after the audit. For information on requirements under state wage and hour laws, see the State Q&A Tools under Related Content.

A model letter for an employer to send or provide to a departed or departing employee to remind him of his continuing obligations to the employer. These obligations may include compliance with restrictive covenants, including non-compete, non-solicit, and non-disclosure provisions, and the continuing duty of loyalty not to disclose an employer's confidential information. This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction-neutral. Individual state or local laws may impose additional or different requirements.

A model letter for an employer to send or provide to a departed or departing employee's new employer to inform it of the employee's continuing obligations to the former employer. These obligations may include compliance with restrictive covenants, including non-compete, non-solicit, and non-disclosure provisions, and the continuing duty of loyalty not to disclose an employer's confidential information. This Standard Document is jurisdiction-neutral and includes integrated notes with important explanations and drafting tips. State or local law may impose additional or different requirements.

This Practice Note describes best practices for employers for creating, implementing, and enforcing contract provisions to shorten the statutes of limitations applicable to employment-based claims. It discusses the enforceability of agreements to shorten the limitations period, pitfalls to avoid when drafting agreements, and factors a court may consider when these provisions are challenged. This Note addresses primarily federal law applicable to private employers with a nonunionized workforce, but highlights issues addressed by state law.

A Chart of deadlines under the procedures available for federal employees to file an appeal under the Merit System Protection Board's (MSPB) appellate jurisdiction. This Chart includes deadlines for initiating and responding to appeals, requesting and participating in hearings before an Administrative Judge, petitioning for review by the full Board and petitioning for judicial review in federal court. This Chart addresses deadlines under federal law and applies to federal sector employees.

A Chart of deadlines under the procedures available for federal employees and applicants for federal employment to file administrative complaints of discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act (Rehab Act), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA) and the Genetic Information Nondiscrimination Act (GINA). This Chart includes deadlines for initiating and investigating complaints, requesting and participating in administrative hearings, appealing to the Equal Employment Opportunity Commission (EEOC) and filing lawsuits in federal court. This Chart addresses deadlines under federal law and applies to federal sector employees and applicants.

A Practice Note addressing some common topics related to the common law claim of defamation. This Note generally discusses defamation under various state laws, including defamation per se, false light, commercial disparagement, and common defenses. An analysis of defamation law specific to each state, public employees or in the criminal context is beyond the scope of this Note.

A 50-state survey Chart for private employees and employers summarizing common law and statutory privileges addressing defamation and qualified privilege defenses. This Chart includes the elements of a defamation claim, the statute of limitations applicable to defamation claims, and whether each state has a job reference immunity statute and qualified privilege defense.

A Checklist of issues for employers to consider when dealing with trade secrets misappropriation in light of the Defend Trade Secrets Act (DTSA), effective as of May 11, 2016. This Checklist also identifies steps employers should take to comply with the DTSA's notice of whistleblower immunity and take full advantage of the remedies available under the Act. This Checklist is based on federal law. State or local law may impose additional or different requirements but this document is useful and relevant to employers in all jurisdictions.

A Practice Note discussing the key issues employers face in defending wage and hour collective actions brought under Section 16(b) of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 216(b)). This Note also covers state-law class actions brought under Rule 23 of the Federal Rules of Civil Procedure (FRCP). For more information on state law wage and hour requirements, see the State Q&A Tool under Related Content.

A Checklist outlining considerations for an employer's counsel defending against a disability discrimination claim under the Americans with Disabilities Act of 1990. For information on disability discrimination claims under state law, see Anti-Discrimination Laws: State Q&A Tool.

A Checklist discussing considerations for an employer's counsel defending a race, color or national origin discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII) or Section 1981 of the Civil Rights Act of 1866 (Section 1981). For information on race, color and national origin discrimination claims under state law, see Anti-discrimination Laws: State Q&A Tool.

A Checklist discussing considerations for an employer's counsel defending a religious discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). For information on religious discrimination claims under state law, see Anti-Discrimination Laws: State Q&A Tool.

A Checklist discussing considerations for an employer's counsel when defending an age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA). For information on age discrimination claims under state law, see the State Q&A Tool under Related Content.

A Checklist discussing considerations for an employer's counsel when defending a claim under the Family Medical Leave Act (FMLA). For information on leave law claims under state law, see the State Q&A Tool under Related Content.

A model demand letter from plaintiff's counsel to the employer alleging failure to accommodate and retaliation under the Americans with Disabilities Act (ADA). This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction-neutral. Individual state or local laws may impose additional or different requirements.

A model demand letter from plaintiff's counsel to the employer alleging discrimination, hostile work environment and retaliation under Title VII. This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction-neutral. Individual state or local laws may impose additional or different requirements.

Model questions for an employer's counsel to use when deposing the plaintiff in a single plaintiff discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies only to private workplaces. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.

Model questions for an employer's counsel to use when deposing a current or former tipped employee in a tip pooling or tip credit case under the Fair Labor Standards Act (FLSA). This Standard Document applies only to private workplaces. It is based on federal law. State and local law may impose different or additional requirements. For information on state law requirements, see the State Q&A Tool under Related Content. This Standard Document has integrated notes with important explanations and drafting tips.

Model questions for plaintiff's counsel to use when deposing a Rule 30(b)(6)-designated employer witness in a discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). This Standard Document is based on federal law but is also useful in cases pending in state courts. This Standard Document has integrated notes with important explanations and drafting tips.

A standard form for employees to inform an employer about complaints of alleged discrimination, harassment or retaliation in the workplace. This Standard Document is intended for use only in private workplaces. It is based on federal law. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips. For information about state law on discrimination, harassment and retaliation see the State Q&A Tool under Related Content.

A standard form to record internal discrimination, harassment or retaliation investigation findings. This Standard Document has integrated notes with important explanations and drafting tips. This Standard Document is based on federal law. For information on state law requirements, see the State Q&A Tool under Related Content.

Model document requests, sometimes referred to as requests for production or RFPs, for complainant's counsel to use when serving document requests on a federal agency employer in a hearing before an administrative judge at the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act (Rehab Act), the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies to federal agency workplaces. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.

Model document requests, sometimes referred to as requests for production or RFPs, for an agency's counsel to use when serving document requests on the complainant in a hearing before an administrative judge at the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act (Rehab Act), the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies to federal agency workplaces. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.

Model document requests, sometimes referred to as requests for production or RFPs, for a plaintiff's counsel to use when serving document requests on the employer in a single plaintiff employment discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies to private workplaces. It is based on federal law. This Document has integrated notes with important explanations and drafting tips.

Model document requests, sometimes referred to as requests for production or RFPs, for an employer's counsel to use when serving document requests on the plaintiff in a single plaintiff employment discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies to litigation against private employers. It is based on federal law and specifically addresses cases pending in federal courts, but also is useful in state court cases. This Standard Document has integrated notes with important explanations and drafting tips.

This resource is under review following an injunction granted by the US District Court for the Eastern District of Texas enjoining the DOL's final rule increasing the minimum salary for most exemptions under the FLSA from $455 to $913 per week. For more information, see Legal Update, DOL's Final Rule Increasing Minimum Salary for FLSA Exemption Enjoined Nationwide: E.D. Texas.Model document requests (requests for production or RFPs) for employers' counsel when drafting an initial set of document requests to plaintiff in a Fair Labor Standards Act (FLSA) executive exemption misclassification case in federal district court. This Standard Document applies to private workplaces and is based on federal law. This Standard Document has integrated drafting notes with important explanations and drafting tips.

Model document requests (requests for production or RFPs) for employers' counsel when drafting an initial set of document requests to plaintiff independent contractors in a Fair Labor Standards Act (FLSA) misclassification case in federal district court. This Standard Document applies to private workplaces and is based on federal law. This Standard Document has integrated drafting notes with important explanations and drafting tips.

Model document requests (requests for production or RFPs) for employer's counsel when drafting document requests to plaintiff employees (or former employees) in a Fair Labor Standards Act (FLSA) tip pooling or tip credit case in federal district court. This Standard Document applies to private workplaces and is based on federal law. This Standard Document has integrated drafting notes with important explanations and drafting tips.

A Checklist of issues for employers to consider when drafting a mandatory arbitration agreement. This Checklist addresses federal law. State or local law may impose additional or different requirements, but this resource will be useful and relevant to employers in every state.

A Checklist outlining the key provisions for employers to consider when drafting and negotiating a settlement agreement in a single-plaintiff employment dispute, including a release of legal claims against the employer. This Checklist is based on federal law, but will be useful to employers in all jurisdictions. For information on state law requirements, see the State Q&A Tool under Related Content.

A checklist providing an outline of the main legal arguments for an employer to consider when preparing a memorandum of law in support of an employer's motion for summary judgment in a sexual harassment case under Title VII of the Civil Rights Act of 1964 (Title VII). It addresses quid pro quo claims, hostile environment claims, the Faragher-Ellerth defense, and more. This checklist applies to private employers and addresses federal law but is useful for cases that also include state law claims.

A checklist providing an outline of the legal main arguments for an employer to consider when preparing a memorandum of law in support of an employer's motion for summary judgment in a single plaintiff employment discrimination case alleging disparate treatment under Title VII of the Civil Rights Act of 1964 (Title VII). It addresses the McDonnell Douglas burden-shifting analysis, failure to exhaust administrative remedies, and more. This checklist applies to private employers and addresses federal law but is useful for cases that also include state law claims.

A model letter for counsel to send to a plaintiff client advising the client of her duty to mitigate her damages in a single-plaintiff employment discrimination case. This Standard Document includes integrated notes with important explanations and drafting tips. It is based on federal law.

This Practice Note addresses the preemption provision of the Employee Retirement Income Security Act (ERISA), including how the provision applies to some of the more common state laws that govern (or would otherwise govern, but for preemption) employee benefit plans. The resource analyzes how the courts have applied ERISA's general preemption rule, saving clause exception, and deemer clause rule to determine whether a particular law is ERISA-preempted.

A sample statement that employers should provide to employees, especially unionized employees, before conducting interviews about facts relevant to a National Labor Relations Board (NLRB) unfair labor practice case. This Standard Document includes integrated notes explaining the information that must be included in the statement and other important points and drafting tips. It is drafted in compliance with the National Labor Relations Act (NLRA) and the NLRB's decision in Johnnie's Poultry Co.

An agreement between an employer and an employee releasing and indemnifying the employer from liability for accidents, injuries or other damages the employee suffers while engaged in an employer-sponsored activity or while using employer-provided equipment or facilities. This Standard Document is jurisdiction neutral. State or local law may impose additional or different requirements, but this document will be useful and relevant to employers in every state. This Standard Document includes an integrated drafting note with important explanations and drafting tips.

A sample response letter from an employer responding to a pre-litigation demand letter from a plaintiff's attorney representing a current or former employee regarding employment-related claims. This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction neutral. Individual state or local laws may impose additional or different requirements.

A letter offering unconditional reinstatement to a discharged employee who has filed a federal discrimination claim against the employer. This Standard Document can help an employer eliminate or toll its liability for front pay and back pay damages under many federal anti-discrimination statutes when offering reinstatement to a discrimination claimant. This Standard Document is intended to be used by private employers with their nonunionized workforce. This Standard Document has integrated notes with important explanatory and drafting tips. It is based on federal law. For information on state law requirements, see the State Q&A Tools under Related Content.

A Checklist for employers to use when negotiating a severance or settlement agreement in a single plaintiff employment dispute. This Checklist covers the employer's initial considerations when deciding whether to enter into a negotiated agreement, key employer agreement terms, and strategies for responding to common employee demands. This Checklist addresses federal law, but flags common state law issues employers must consider.

A Practice Note describing strategies for negotiating a severance or settlement agreement in a single plaintiff employment dispute from the employer's perspective. This Note focuses on the employer's business considerations, the reasons for settlement, key employer agreement terms, strategies for responding to common employee demands, and other best practices. This Note addresses federal law but flags common state law issues employers must consider.

This tool enables subscribers to search and compare Practical Law's Employment Claims in Release Agreements State Q&A resources. Questions and answers address a variety of issues for private employers, including state-specific claims to identify in release agreements and to omit from release agreements. Federal, local, or municipal law may impose additional or different requirements.Simply select relevant questions and jurisdictions and click the "Submit" button. To see all of Practical Law's State Q&As on Employment Claims in Release Agreements, see State Q&A: Employment Claims in Release Agreements. To see all of Practical Law's State Q&As, which include relevant Legal Updates since the publication date (under Related Content), see Labor & Employment on the State Q&A landing page.

Resources to help counsel evaluate, prove, and defend against damage claims in employment litigation cases, including claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Fair Labor Standards Act (FLSA), and restrictive covenant and whistleblower cases. This Toolkit includes resources addressing potential remedies, such as back pay, front pay, compensatory damages, punitive damages, liquidated damages, and injunctive relief, and how remedies issues arise at all stages of litigation, including early case evaluation, discovery, motion practice, trial, and settlement.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) but is also useful for cases pending in state courts. For state-specific versions, see resources listed in Related Content.

A Checklist of issues for a defendant employer or employer's counsel to consider at the beginning of a lawsuit or when later reassessing the case to help develop litigation strategy. This Checklist addresses initial considerations, gathering information, and common issues to analyze as part of the case assessment. It is based on federal law, but also is useful to assess cases filed in state court.

This Note highlights the key issues employers should consider before asserting counterclaims against their current and former employees. This Note discusses commonly asserted claims, jurisdictional considerations, and the potential benefits and drawbacks of asserting counterclaims, including the risks to employers that counterclaims may be construed as retaliatory conduct. This Note addresses federal law and primarily applies to single-plaintiff employment disputes, but is helpful to any employers considering bringing counterclaims against their employees or former employees.

A Practice Note discussing litigation of claims under the Family Medical Leave Act (FMLA). It addresses the causes of action under the FMLA, including FMLA interference, discrimination, and retaliation claims, and the respective standards and burdens of proof associated with each. This Note also discusses defenses, remedies, and jury awards under the FMLA. This Note specifically addresses federal law.

A Checklist of steps to take when preparing a defense witness to be deposed in an employment case. This Checklist addresses reviewing key areas of testimony, including anticipated legal and factual issues, informing the witness of the purpose of a deposition, and familiarizing the witness with the deposition process. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) but is also useful for cases pending in state courts.

A Checklist of steps to take when preparing a plaintiff to be deposed in an individual employment case. This Checklist addresses reviewing key areas of testimony, including anticipated legal and factual issues, informing the plaintiff of the purpose of a deposition, and familiarizing the plaintiff with the deposition process. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) but is also useful for cases pending in state courts.

This Practice Note describes best practices for preparing to defend the deposition of an employer's witness in an employment case. It discusses understanding basic rules and procedures, creating prep materials, evaluating the witness, preparing the witness, and conducting a mock deposition. This Note specifically addresses cases pending in federal court, but also is useful for cases pending in state courts.

A Practice Note describing best practices for preparing to depose an employer witness in an employment case. This Note discusses noticing and scheduling the deposition, understanding the law and facts at issue in the case, preparing the deposition outline, and anticipating issues that may arise during the deposition. This Note specifically addresses cases pending in federal court, but is also useful for cases pending in state court.

A Checklist of steps to take when preparing to depose the employer witness in an employment case. This Checklist addresses noticing and scheduling the deposition, making logistical arrangements for the deposition, researching facts and law relevant to the case, preparing the deposition outline and exhibits, and anticipating issues that may arise at the deposition. This Checklist is based on the Federal Rules of Civil Procedure but is also useful for cases pending in state courts.

This Note describes best practices for preparing to depose the plaintiff in an employment case. It discusses noticing and scheduling the deposition, understanding the law and facts at issue in the case, preparing the deposition outline, and anticipating issues that may arise during the deposition. This Note specifically addresses cases pending in federal court, but also is useful for cases pending in state courts.

A Checklist of steps to take when preparing to depose the plaintiff in an employment case. This Checklist addresses noticing and scheduling the deposition, making logistical arrangements for the deposition, researching facts and law relevant to the case, preparing the deposition outline and exhibits, and anticipating issues that may arise at the deposition. This Checklist is based on the Federal Rules of Civil Procedure but is also useful for cases pending in state courts.

A form for proposed jury instructions that may be used in federal employment discrimination cases under Title VII. This Standard Document contains integrated drafting notes with sample jury instructions and important explanations and tips for drafting the caption, body and signature block.

A sample deposition notice under Federal Rule of Civil Procedure (FRCP) 30(b)(6) that counsel for a plaintiff may use as a starting point for drafting a corporate deposition notice to an employer in a discrimination, harassment, or retaliation case. This Standard Document has integrated drafting notes with important explanations and drafting tips.

Resources to help employers and their counsel prevent and defend against single plaintiff employment discrimination litigation under Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), Section 1981, the Equal Pay Act (EPA), the Family and Medical Leave Act (FMLA), and state anti-discrimination laws. This Toolkit includes resources addressing discovery, employer defenses, substantive legal requirements, and settlement.

This Practice Note discusses single plaintiff employment discrimination litigation under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), Section 1981 of the Civil Rights Act of 1866 (Section 1981), and the Equal Pay Act (EPA). It addresses various stages of the case, including pleadings, discovery, dispositive motions, trial, and settlement. This Note specifically addresses federal law, but it also is useful for cases pending in state courts.

Template clauses for an employer position statement to the Equal Employment Opportunity Commission (EEOC) responding to an employee charge of discrimination, harassment or retaliation. This Standard Document has integrated notes with important explanatory notes and drafting tips.

This Practice Note discusses the requirement that plaintiffs exhaust administrative remedies under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination in Employment Act (ADEA) before they may sue a private employer in federal court. It also discusses time limits for filing charges before the Equal Employment Opportunity Commission (EEOC) and for filing complaints in federal court, and what claims can be brought in those federal lawsuits.

A Chart summarizing extraterritorial coverage under the major federal employment laws applicable to private employers, including statutory and case authority where applicable. Statutes covered include Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and more.

This Practice Note addresses the extraterritorial application of the major federal employment laws to US employees working overseas and foreign employees working in the US. It covers the relevant statutory provisions, developing case law, and defenses available to employers faced with US laws that conflict with laws in the workplace country. This Practice Note covers federal law and applies to private employers. The local laws in any jurisdiction where a business employs workers may impose different or additional requirements.

A Practice Note describing the necessary steps for initiating and conducting an arbitration of an industry dispute in the US before the Financial Industry Regulatory Authority (FINRA) under the FINRA Code of Arbitration Procedure for Industry Disputes. This Note discusses the filing of a statement of claim, answer, and motions, as well as arbitrator appointment, discovery, hearings, sanctions, and awards in Industry arbitrations.

This Standard Clause provides model language that can be used to characterize the Faragher-Ellerth affirmative defense in a brief supporting a motion for summary judgment. This affirmative defense can be used to defend against claims of hostile work environment by a supervisor or superior. This Standard Clause contemplates claims under federal law, but its basic framework may be used in response to claims under state or local law if recognized in the particular jurisdiction. Confirm the standards used in your particular jurisdiction before using this clause and cite jurisdiction-specific case law as appropriate. This Standard Clause includes integrated notes with important explanations and drafting tips.

A set of Charts that identifies the remedies available to a federal sector employee complaining about discrimination, an adverse employment action, or other workplace conditions, and when an employee must elect only one of the available remedies. These Charts apply only to federal civilian employees covered by the Civil Service Reform Act (CSRA), the federal anti-discrimination laws, and related civil service laws.

Flowchart outlining the procedures available for federal employees and applicants for federal employment to file administrative complaints of discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act (Rehab Act), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA) and the Genetic Information Nondiscrimination Act (GINA).

This Checklist and Chart describes the process for identifying a mixed case, which is a complaint of employment discrimination made by a federal employee that is related to or stems from an action that can be appealed to the Merit Systems Protection Board (MSPB) and the special procedures that apply to mixed cases.

A form letter for counsel to use when requesting documents from the US Equal Employment Opportunity Commission (EEOC) under the Freedom of Information Act (FOIA), including the EEOC's investigation file on a complainant's charge of discrimination. This Standard Document has integrated notes with important explanations and drafting tips. This Standard Document addresses federal law, but may be useful for counsel seeking documents under a similar state freedom of information law.

A Practice Note describing internal investigations of employee misconduct, including the types of workplace issues warranting an investigation, legal risks associated with conducting an investigation and best practices for conducting an investigation. This Note outlines the steps to be taken when conducting an internal investigation and post-interview activities. This Note addresses federal law.

A Practice Note describing the steps an employer can take to minimize litigation risk when hiring from a competitor. This Note discusses potential statutory and common law claims when hiring from a competitor, the need to identify any existing contractual restrictions a potential new hire may have, how to avoid potential issues during the recruitment process, ensuring the new hire is a "good leaver" during the resignation process, responding to cease and desist letters, and potential pre-litigation settlement concepts. The Note is jurisdiction neutral. For information on state-specific hiring or non-compete issues, see State Q&As: Hiring Requirements and Non-Compete Laws.

A Checklist to help employers minimize the legal risks presented by employer-sponsored holiday parties. This checklist addresses sexual harassment prevention, avoiding harms created by alcohol consumption, workers' compensation liability, and wage and hour claims. This resource is jurisdiction-neutral. For information on state law requirements, see the State Q&A Tools under Related Content.

This Practice Note explains the Financial Industry Regulatory Authority (FINRA) arbitrator appointment process and provides guidance on the key procedural and practical issues that counsel should understand to help obtain the most favorable panel possible for both industry disputes (particularly employment-related disputes) and customer or investor disputes.

Model interrogatories for a plaintiff's counsel to use when serving interrogatories on the employer in a single plaintiff employment discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies to private workplaces. It is based on federal law. This Document has integrated notes with important explanations and drafting tips.

Model interrogatories for an employer's counsel to use when serving interrogatories on the plaintiff in a single plaintiff employment discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) or the Genetic Information Nondiscrimination Act (GINA). This Standard Document applies to private workplaces. It is based on federal law.

This resource is under review following an injunction granted by the US District Court for the Eastern District of Texas enjoining the DOL's final rule increasing the minimum salary for most exemptions under the FLSA from $455 to $913 per week. For more information, see Legal Update, DOL's Final Rule Increasing Minimum Salary for FLSA Exemption Enjoined Nationwide: E.D. Texas.Model interrogatories for employers' counsel to use when drafting an initial set of interrogatories to plaintiff in a Fair Labor Standards Act (FLSA) executive exemption misclassification case in federal district court. This Standard Document applies to private workplaces and is based on federal law. It contains integrated drafting notes with important explanations and drafting tips, as well as a verification form for the responding party to execute.

Model interrogatories for employers' counsel when drafting interrogatories to plaintiff in a Fair Labor Standards Act (FLSA) independent contractor misclassification case in federal district court. This Standard Document applies to private workplaces and is based on federal law. This Standard Document contains integrated drafting notes with important explanations and drafting tips, and includes a verification form.

Model interrogatories for employer's counsel to use when drafting interrogatories to plaintiff employees (or former employees) in a Fair Labor Standards Act (FLSA) tip pooling or tip credit case in federal district court. This Standard Document applies to private workplaces and is based on federal law. It contains integrated drafting notes with important explanations and drafting tips, and includes a verification form for the plaintiff's signature.

A flowchart outlining the stages of a JAMS employment arbitration under the JAMS Employment Arbitration Rules and Procedures, from commencement of the arbitration, through arbitrator appointment, discovery, pre-hearing procedures, hearing, and award.

A Practice Note describing the steps for initiating and conducting an employment arbitration in the US under the JAMS Employment Arbitration Rules and Procedures (JAMS Employment Rules). This Note explains the applicability of the JAMS Employment Rules and the pre-hearing and hearing procedures for conducting the arbitration. It also explains the form and contents of an award and the options for a form of agreed award.

A Checklist outlining the ethical and legal considerations defense counsel should consider and the steps to take when jointly representing an employer and individually sued employee in an employment litigation, including discrimination, harassment, retaliation, wage and hour, and tort cases. The individual defendants may include the plaintiff's coworker, supervisor, or manager, as well as a human resources representative, officer, or executive of the employer. This Checklist discusses conflicts of interest, joint representation letters, and more.

This Note provides an overview of labor arbitration procedings and the law surrounding labor arbitration for employers covered by the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB). Labor law in the private sector is primarily governed by federal law including the NLRA and the Labor Management Relations Act (LMRA) and this resource only covers federal law.

A last chance agreement (LCA) to be signed by an employer, union, and union-represented employee who has engaged in misconduct worthy of discharge to conditionally reinstate that employee and provide him a chance to improve his performance. In an LCA, the employer agrees to withdraw pending or previously issued discipline in return for the employee's promise to refrain from further infractions and to waive certain procedural rules concerning the grievance and arbitration process if the employee commits another infraction resulting in discharge. This Standard Document is drafted primarily for unionized private sector employers under the National Labor Relations Act (NLRA), but it may be useful to unionized employers covered by the Railway Labor Act (RLA) and in the public sector. This Standard Document has integrated notes with important explanations and drafting tips.

This Practice Note discusses the procedures available for federal employees to file an appeal with the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 (CSRA), the Whistleblower Protection Act (WPA) and related civil service laws. This Note discusses federal law and procedures for federal sector employees.

Chart identifying major federal labor and employment laws, their statutes and regulations, and the primary agency or agencies responsible for enforcement. For information about state labor and employment laws, see the State Q&A Tools under Related Content.

This Standard Clause provides model language that can be used to characterize the McDonnell Douglas burden-shifting standard in a brief supporting a motion for summary judgment. The standard is the framework against which courts may assess a claim of discriminatory treatment. This Standard Clause contemplates claims under federal law, but its basic framework may be used in response to claims under state or local law if recognized in the particular jurisdiction. Confirm the standards used in your particular jurisdiction before using this clause and cite jurisdiction-specific case law as appropriate. This Standard Clause includes integrated notes with important explanations and drafting tips.

A Checklist of best practices and issues for parties and their counsel to consider when mediating employment disputes, including the benefits and drawbacks of mediation, when and where to mediate, the appropriate participants to the mediation, and the unique factors affecting employment mediation. This Checklist applies primarily to single-plaintiff employment claims and is jurisdiction neutral, but is useful to any parties considered or involved in mediating employment disputes.

A Practice Note explaining the key issues parties should consider when mediating employment disputes, including the benefits and drawbacks of mediation, the mediation forum, timing for the mediation, payment allocation, determining who should be present, and the mediation process as applied to employment claims. This Note applies primarily to single-plaintiff claims and is jurisdiction neutral, but is useful to any parties considering or involved in mediating employment disputes.

A Practice Note analyzing mitigation of damages in federal employment litigation. This Note discusses failure to mitigate as an affirmative defense, reasonable efforts to mitigate, substantially equivalent employment and comparable employment, specialized work, offers of reinstatement, self-employment, and the reasonable diligence standard. This Note does not include state law analysis.

Model objections to interrogatories for an employer's counsel to use when responding to a plaintiff's interrogatories in a single plaintiff employment discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) or the Genetic Information Nondiscrimination Act (GINA). This Standard Document is appropriate for use in defending private employers. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.

Model objections to document requests, sometimes referred to as requests for production or RFPs, for an employer's counsel to use when responding to a plaintiff's document requests in a single plaintiff employment discrimination case under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). This Standard Document is appropriate for use in defending private employers. It is based on federal law and specifically addresses cases pending in federal courts, but also is useful in state court cases. This Standard Document has integrated notes with important explanations and drafting tips.

Model questions for interviewing a complaining employee, witnesses and individuals involved in alleged workplace discrimination. This Standard Document has integrated notes with important explanatory and drafting tips. This Standard Document is based on federal law.

Model questions for interviewing the complaining employee, witnesses and the alleged harasser when investigating a sexual harassment complaint. This Standard Document has integrated notes with important explanatory and drafting tips. This Standard Document is based on federal law, including Title VII of the Civil Rights Act of 1964. For information on state law requirements, see the State Q&A Tool under Related Content.

A model letter for a plaintiff-side attorney to send or provide to a client to terminate the attorney-client relationship and inform the client of her obligations to preserve her claims. This Standard Document includes integrated notes with important explanations and drafting tips. It complies with the American Bar Association Model Rules of Professional Conduct. State-adopted ethics rules may impose additional or different requirements and are beyond the scope of this Document.

A sample Notice of Appearance for a plaintiff-side attorney to send or provide to the Equal Employment Opportunity Commission. This Standard Document includes integrated notes with important explanations and drafting tips.

A Checklist of the issues employer's counsel should consider when proposing (or objecting to) the form and content of notice in a collective action under Section 216(b) of the Fair Labor Standards Act (FLSA). This Checklist identifies several critical points counsel should address before distributing notice to potential opt-ins, including the content and format of the notice, the methods used to distribute the notice, and receipt and processing of consent to join forms returned by opt-ins. This Checklist is based on federal law.

A Practice Note discussing the issues counsel should consider when proposing (or objecting to) the form and content of notice in a collective action under Section 216(b) of the Fair Labor Standards Act (FLSA). This Note identifies several critical points that should be addressed before distributing notice to potential opt-ins, including the content and format of the notice, the methods used to distribute the notice, and receipt and processing of consent to join forms returned by opt-ins. This Note is based on federal law.

A collection of schedules for the records that entities regulated by the Occupational Safety and Health Administration must retain. This resource includes individual schedules for each of the industries for which OSHA regulates recordkeeping: general industry, shipyards, marine terminals, longshoring, and construction.

A sample petition to revoke a subpoena duces tecum issued by the National Labor Relations Board (NLRB). This Standard Document includes integrated notes and drafting tips. It is drafted in compliance with the National Labor Relations Act (NLRA) and the NLRB's Rules and Regulations.

A sample petition to revoke or modify a subpoena issued by the Equal Employment Opportunity Commission (EEOC). This Standard Document includes integrated notes and drafting tips. It is drafted in compliance with the EEOC's regulations.

A sample cease and desist letter for a plaintiff's attorney to send to a plaintiff's former employer demanding that the employer stop defaming the plaintiff. This Standard Document includes integrated notes with important explanations and drafting tips.

A sample client intake form for plaintiff-side attorneys to use during an initial consultation. This Standard Document also contains a statement of rights and responsibilities for clients that may be modified according to the applicable rules of professional conduct.

A Checklist for plaintiffs' counsel that addresses conciliation with the Equal Employment Opportunity Commission (EEOC) and intervening in employment discrimination cases initiated by the EEOC. This Checklist is based on federal law and applies to federal lawsuits against private employers.

A discovery plan template for plaintiff-side attorneys to use to plan discovery in discrimination harassment, and retaliation cases under Title VII of the Civil Rights Act of 1964 (Title VII). This template can be used to list the elements the plaintiff must prove at trial, the employer's potential defenses the plaintiff must counter and how plaintiff's counsel will gather the necessary evidence in discovery. This Standard Document has integrated drafting notes with important explanations and drafting tips.

A damages assessment worksheet for plaintiff-side attorneys to use in federal discrimination and retaliation cases to determine available remedies in a case. This checklist can be used in evaluating the strengths and weaknesses of a case and to determine a potential settlement amount or jury award. The statutes considered include Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA) and related statutes.

This Practice Note discusses intervening and litigating with the Equal Employment Opportunity Commission (EEOC). In particular, this Note discusses the circumstances under which the EEOC may intervene in a lawsuit initiated by a plaintiff employee and when and under what circumstances an employee may intervene in a lawsuit initiated by the EEOC. This Note is based on federal law and applies to federal lawsuits against private employers.

A letter agreement between a plaintiff-side attorney and a plaintiff client for the provision of legal services charged on a contingency basis, outlining the parties' respective duties. This Standard Document is drafted from the perspective of a litigation engagement, but it also contains typical language that can be used in a transactional context. This Standard Document has integrated notes with important explanations and drafting tips.

A letter agreement between a plaintiff-side attorney and a plaintiff client for the provision of legal services charged on an hourly basis, outlining the parties' respective duties. This Standard Document is drafted from the perspective of a litigation engagement, but it also contains typical language that can be used in a transactional context. This Standard Document has integrated notes with important explanations and drafting tips.

A Practice Note describing strategies for negotiating a severance or settlement agreement from the plaintiff attorney's perspective and suggested best practices. This Note focuses on the initial consultation, negotiation strategies and common agreement provisions, including restrictive covenants and enforcement provisions. It also discusses the most common types of consideration offered by employers.

A Checklist outlining the strategies for negotiating a severance or settlement agreement from the plaintiff attorney's perspective. This Checklist discusses the initial consultation, negotiation strategies and common agreement provisions, including restrictive covenants and enforcement provisions.

This Practice Note discusses pregnancy discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), the Pregnancy Discrimination Act of 1978 (PDA), the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and the Fair Labor Standards Act (FLSA). This Note discusses federal law prohibiting discrimination, harassment and retaliation against applicants and employees based on pregnancy, childbirth and medical conditions related to pregnancy, as well as reasonable accommodation requirements.

A model demand letter from plaintiff's counsel to the employer alleging discrimination, hostile work environment and retaliation under Title VII as amended by the Pregnancy Discrimination Act. This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction-neutral. Individual state or local laws may impose additional or different requirements.

A sample complaint that can be used to commence a pregnancy discrimination and retaliation civil lawsuit in federal district court. This Standard Document contains integrated drafting notes with important explanations and tips for drafting the complaint's caption, preliminary statement, jurisdiction and venue sections, facts section, legal claims, prayer for relief, and signature block.

A Checklist to help employers prepare to arbitrate labor disputes typically under the terms of a collective bargaining agreement (CBA). This Checklist is primarily intended for employers covered by the National Labor Relations Act (NLRA), which covers most private sector employers. This Checklist may also be useful to non-covered employers.

A Practice Note describing the steps an employer can take to prepare to successfully litigate a non-compete action, the primary options for enforcing a non-compete agreement, and the strategic decisions involved with each option. This Note discusses gathering evidence, key steps to assessing the enforceability of a non-compete, factors to consider before initiating legal action, cease and desist letters, declaratory judgments, seeking damages, requesting injunctive relief, and potential remedies available under the Defend Trade Secrets Act (DTSA). This Note is jurisdiction neutral. For information on state law requirements, see the State Q&A Tool under Related Content.

A Checklist to help employers prevent discrimination and minimize the risk of related litigation. It includes information on drafting effective policies, training supervisors and staff, conducting internal investigations and responding to internal discrimination complaints. This Checklist addresses federal law. For information on state law requirements, see Anti-Discrimination Laws: State Q&A Tool.

A Checklist to help employers prevent sexual harassment claims and minimize the risk of related litigation. It includes information on drafting effective policies, training supervisors and staff, conducting internal investigations, and responding to internal discrimination complaints. This Checklist addresses federal law. For information on state law requirements, see the State Q&A Tool under Related Content.

Questionnaire to help companies and their counsel evaluate an individual's status as an independent contractor under the Fair Labor Standards Act (FLSA). This Standard Document applies to private workplaces and is based on federal law. For information on state law requirements, see the Independent Contractors: State Q&A Tool under Related Content. This Standard Document contains integrated drafting notes with important explanations and drafting tips.

A Chart of remedies available in a dispute between private parties under major federal employment anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), the Equal Pay Act of 1963 (EPA), the Genetic Information Nondiscrimination Act of 2008 (GINA), Section 1981 of the Civil Rights Act of 1866 (Section 1981), Section 1983 of the Civil Rights Act of 1871 (Section 1983), the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and the Family and Medical Leave Act of 1993 (FMLA).

This Practice Note addresses back pay damages in employment discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), including the statutory bases for the awards, the calculation of damages, discovery and evidence relevant to back pay, and permissible deductions from back pay calculations. This Note also addresses employer defenses that can eliminate or reduce back pay awards, including an employee's failure to mitigate damages, after-acquired evidence of misconduct, and an unconditional offer of reinstatement. This Note addresses federal law. For information about damages available under state anti-discrimination laws, see the State Q&A Tool under Related Content.

This Practice Note addresses emotional distress and other compensatory damages in employment discrimination cases, including the nature of compensatory damages, statutory damages caps under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), discovery and evidentiary issues, and the tax treatment of compensatory damages. This Note addresses federal law and applies to private employers. For information about damages available under state anti-discrimination laws, see the Anti-Discrimination Laws: State Q&A Tool.

This Practice Note addresses front pay awards in employment discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), including the statutory bases for the awards, calculation of damages, discovery and evidence needed to prove front pay, and permissible deductions when calculating front pay awards. This Note also discusses employer defenses that can eliminate or reduce front pay awards, including an employee's failure to mitigate damages, after-acquired evidence of misconduct, and an unconditional offer of reinstatement. This Note covers federal law. For information about damages available under state anti-discrimination laws, see Anti-Discrimination Laws: State Q&A Tool.

This Practice Note addresses punitive and liquidated damages in employment discrimination cases, including the statutory authority for punitive damages, damages caps under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA), when punitive damages are appropriate, employers' challenges to punitive damages, discovery issues, motion practice, and more. This Note addresses federal law and applies to private employers. For information about damages available under state anti-discrimination laws, see Anti-Discrimination Laws: State Q&A Tool.

A Checklist of steps to take when responding to Equal Employment Opportunity Commission (EEOC) charges, particularly sexual harassment charges. This Checklist addresses federal law. For information on state law requirements, see the State Q&A Tool under Related Content.

A Practice Note describing best practices for responding effectively to an Equal Employment Opportunity Commission charge. This Note is based on federal law but may also be helpful in responding to charges filed with state or local fair employment practices agencies (FEPAs). For information on state law requirements, see Anti-Discrimination Laws: State Q&A Tool.

A Checklist for employers that must respond to National Labor Relations Board (NLRB) unfair labor practice (ULP) charges and complaints. This Checklist addresses the National Labor Relations Act (NLRA).

A sample cease and desist letter for an employer to send to a former employee believed to be violating post-employment obligations to the employer. These obligations may include compliance with restrictive covenants, including non-compete, non-solicit, and non-disclosure provisions, obligations under trade secret statutes, and the continuing duty of loyalty not to disclose an employer's confidential information. This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction-neutral. Individual state or local laws may impose additional or different requirements.

A sample cease and desist letter for an employer to send to a former employee's new employer when the employer believes conduct in the new employment is violating the employee's post-employment obligations to the employer. These obligations may include compliance with restrictive covenants, including non-compete, non-solicit, and non-disclosure provisions, obligations under trade secrets statutes, and the continuing duty of loyalty not to disclose an employer's confidential information. This Standard Document includes integrated notes with important explanations and drafting tips. It is jurisdiction-neutral. State or local law may impose additional or different requirements.

A Practice Note discussing Federal Rule of Civil Procedure 68 (Rule 68) offers of judgment in Fair Labor Standards Act (FLSA) collective actions, including the mechanics of Rule 68 offers, the effect of unaccepted offers on the named plaintiffs' individual claims, tenders of complete relief, and best practices. This Note is based on federal law. State procedural rules, including state versions of Rule 68, may impose additional or different requirements.

This Practice Note describes the scope of permissible discovery plaintiffs can obtain from defendants in employment discrimination lawsuits under statutes like Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and more. It provides an overview of the most commonly disputed discovery issues between employers and employees in plaintiffs' discovery requests, such as requests for and objections to other complaints of discrimination against the employer, personnel files, employee demographics, and company financial data. This Note addresses federal law but is also useful for handling discovery disputes under state or local anti-discrimination laws.

This Practice Note describes the scope of permissible discovery employers can obtain from plaintiffs in employment discrimination lawsuits brought under statutes like Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and more. It provides an overview of the most commonly disputed discovery issues stemming from an employer’s discovery requests, including requests for and objections to social media content, electronic communications, medical records and psychotherapy notes, tax records, other lawsuits, and personal diaries. This Note addresses federal law but is also useful for handling discovery disputes under state or local anti-discrimination laws.

This Note discusses the US federal income tax treatment of amounts received by employees in settlement of employment-related disputes, and the reporting and income and payroll tax withholding responsibilities for employers making these payments.

A model settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on federal law and intended to be used by private employers with their non-unionized workforce. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips. For information on state law requirements, see the State Q&A Tool under Related Content.

Resources to help employers and their counsel settle lawsuits and administrative claims brought by their employees and former employees. This Toolkit includes resources addressing drafting and negotiating settlement and separation agreements, releases of employee claims, and employment mediation.

A Practice Note describing how social media impacts restrictive covenant litigation and enforcement. This Note addresses the evolving definitions of protectable interests and reasonableness, how an employee's social media conduct can violate a restrictive covenant, and drafting tips for employers seeking restrictive covenant protection in the social media age of Facebook, LinkedIn, Twitter, and more. This Note is jurisdiction neutral, but will be useful to employers in all jurisdictions. For information on state law requirements, see the State Q&A Tools under Related Content.

A Chart of statutes of limitations under major federal labor and employment laws, including Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Equal Pay Act (EPA), the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), Section 1981 of the Civil Rights Act (Section 1981), and others.

This Note discusses systemic discrimination litigation. In particular, it discusses how to respond to information requests and subpoenas from the Equal Employment Opportunity Commission (EEOC), issues to consider when deciding whether to challenge an EEOC subpoena, the EEOC's "sue first, ask questions later" litigation strategy and related best practices for employers. It is based on federal law.

A description of the Merit Systems Protection Board (MSPB) and its role in protecting the federal merit system principles and promoting an effective federal workforce free of prohibited personnel practices (PPPs). This Practice Note describes the MSPB's organization, jurisdiction and role in adjudicating employment appeals from federal employees. This Note also includes a list of terms frequently used in MSPB appeals.

A description of the Office of Special Counsel (OSC) and its role in protecting the federal merit system principles and promoting an effective federal workforce free of prohibited personnel practices (PPPs). This Practice Note describes OSC's organization, jurisdiction and role in investigating PPP complaints and enforcing the civil service laws that protect federal employees. This Note also describes the relationship between OSC and other federal agencies that protect the rights of federal employees.

A tolling agreement (also commonly referred to as a standstill agreement) between an employer and an employee specifying the terms for tolling the statute of limitations of specific claims and defenses between the parties. This Standard Document has integrated notes with important explanations and drafting tips and is based on federal law.

A Practice Note discussing trade secrets litigation for employers whose employees have misappropriated trade secrets. This Note describes pre-litigation investigations, sending cease and desist letters, and contacting law enforcement. It also addresses filing a legal action, including choice of forum and choice of law, deciding whether to include the employee's new employer and third parties, common causes of action (including the Defend Trade Secrets Act of 2016), discovery, injunctive relief, damages, and attorneys' fees. It includes best practices for preparing to counter potential defenses and counterclaims and maintaining confidentiality during litigation.

A Checklist to help employers try a labor dispute through arbitration, typically under the terms of a collective bargaining agreement (CBA). This Checklist is primarily intended for employers covered by the National Labor Relations Act (NLRA), which covers most private sector employers. This Checklist may also be useful to non-covered employers.

A model letter for counsel to enter an appearance and request a hearing before an Administrative Law Judge. This Standard Document may be modified and used by counsel for employers or employees. It includes integrated notes with important explanations and drafting tips. State law may impose additional or different requirements for entering an appearance or requesting an unemployment insurance benefits hearing and are beyond the scope of this Document.

A sample form to be provided to a claimant to authorize her counsel to review and copy her file at the Department of Labor before an unemployment insurance hearing. This Standard Document has integrated notes and important explanations and drafting tips. State law may impose additional or different requirements for requesting an authorization to review a claimant's file and are beyond the scope of this Document.

This Practice Note describes the Whistleblower Protection Act of 1989 (WPA), as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA). It discusses whistleblower protections for federal employees under the WPA, including protected disclosures, covered federal employers, elements of the two classes of retaliation claims, the roles of the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB) in adjudicating whistleblower retaliation claims, and remedies available under the WPA. This Note covers federal law and applies only to federal employees.

This Legal Update reports on select federal administrative agency developments which occurred through November 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies.

A Q&A guide to release of claims agreements for private employers in Kansas. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

On November 30, 2016, Practical Law and Epstein Becker & Green, P.C. presented a webinar providing insights into recent developments and expected trends in the evolving legal landscape of trade secrets and employee non-competition agreements. This webinar focused on how to navigate this developing area and effectively protect client relationships and proprietary information. Topics included the federal remedies under the Defend Trade Secrets Act (DTSA), newly passed state statutes limiting restrictive covenants, recent decisions regarding what constitutes adequate consideration for a non-compete, developments about choice of law and forum selection issues, and administrative agency enforcement actions cracking down on confidentiality provisions. You can access the recorded webinar here.Click here to download the webinar slides.

In Hess v. US Postal Service, the Merit Systems Protection Board (MSPB) held that it could award compensatory damages in discrimination cases even after the agency rescinded the appellant's removal from her US Postal Service (USPS) position.

A Q&A guide to release of claims agreements for private employers in New Hampshire. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Chauca v. Abraham, the US Court of Appeals for the Second Circuit certified to the New York State Court of Appeals the question of what standard should be applied for awarding punitive damages under the New York City Human Rights Law (NYCHRL) and whether that standard is the same as that applied under Title VII of the Civil Rights Act of 1964 (Title VII).

In Carlson v. Christian Bros. Servs., the US Court of Appeals for the Seventh Circuit held that the "Complainant Information Sheet" (CIS) filed with the Illinois Department of Human Rights (IDHR) by a former employee did not qualify as a "charge" of discrimination.

This Legal Update reports on select federal administrative agency developments which occurred through October 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies

In Associated Builders and Contractors of Southeast Texas v. Rung, a federal judge in the Eastern District of Texas issued a nationwide injunction blocking enforcement of the parts of the "Fair Pay and Safe Workplaces" rule requiring federal contractors to disclose labor law violations and prohibiting certain arbitration agreements.

The Federal Acquisition Regulatory Council (FAR Council) and the US Department of Labor (DOL) have respectively issued a final rule and simultaneous guidance implementing Executive Order 13673, Fair Pay and Safe Workplaces Executive Order (Order). The final rule is effective October 25, 2016, but will be implemented in phases.

In Scott v. Education Management Corp., the US Court of Appeals for the Third Circuit vacated a district court's dismissal of claims alleging discrimination in violation of the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964 (Title VII), and Pennsylvania state discrimination law, and held that assent to a contract cannot be implied between parties when the terms of the contract has been expressly rejected by a party.

A Q&A guide to release of claims agreements for private employers in Tennessee. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Green v. Brennan, the US Supreme Court held that the limitations period in a public employee's Title VII of the Civil Rights Act of 1964 (Title VII) discrimination claim involving constructive discharge does not begin running until after the employee resigns.

In Richardson v. Wells Fargo Bank, N.A., the US Court of Appeals for the Fifth Circuit held that an overtime action brought under Fair Labor Standards Act (FLSA) in US district court by home mortgage consultants was precluded by a previously settled action brought in California state court.

In Ziober v. BLB Resources, Inc., the US Court of Appeals for the Ninth Circuit held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) does not prohibit employers from requiring arbitration of USERRA claims brought by returning military servicemembers.

California Governor Jerry Brown recently signed into law Senate Bill No. 1241 (SB-1241) adding Section 925 to the California Labor Code. Section 925 prohibits the use of choice of law and choice of venue contract provisions that apply another state's law or require adjudication of disputes in another state as a condition of employment for an individual who primarily resides and works in California. The law applies to contracts entered into, modified, or extended on or after January 1, 2017.

An Article profiling the US Court of Appeals for the Seventh Circuit's decision in United States Soccer Federation, Inc. v. United States National Soccer Team Players Association, in which the court took the rare actions of interpreting collective bargaining agreement (CBA) clauses and directing a district court to vacate a labor arbitration award regarding soccer player likeness rights and a tequila poster. The case is instructive for contract drafters and parties seeking to vacate labor arbitration awards.

In Savage v. Department of the Army, the Merit Systems Protection Board (MSPB) held that federal employees may establish a retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII) by showing that retaliation was a motivating factor in an agency's contested personnel action. The MSPB rejected the but-for test applied in University of Texas Southwestern Medical Center v. Nassar, finding that the Supreme Court's decision did not apply to federal employees.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Massachusetts. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under federal and state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Massachusetts law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Pennsylvania. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under federal and state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Pennsylvania law.

This Legal Update reports on select federal administrative agency developments which occurred through September 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices, and agreements with agencies.

In Calderone v. Scott, the US Court of Appeals for the Eleventh Circuit reversed a district court's denial of conditional Rule 23 class certification, holding that a collective action under § 216(b) of the Fair Labor Standards Act (FLSA) and a state law Federal Rule of Civil Procedure (FRCP) Rule 23(b)(3) class action could be maintained in the same proceeding.

In Hays v. HCA Holdings, Inc., the US Court of Appeals for the Fifth Circuit held that intertwined claims estoppel required that the plaintiff arbitrate his claims against a non-signatory to an arbitration agreement, even though the Texas Supreme Court had not explicitly adopted that theory.

A Q&A guide to release of claims agreements for private employers in the District of Columbia. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Standard Clause provides sample language for an Ohio-compliant mandatory arbitration provision of employment-related claims that can be incorporated into a written employment agreement or employee handbook. This Standard Clause has an integrated drafting note with explanations and drafting tips.

In Children's Hospital and Research Center of Oakland, the National Labor Relations Board (NLRB) held that employers are required to arbitrate pending grievances with a former union under a collective bargaining agreement (CBA) with that union, even if the former union was subsequently decertified and superseded by another union.

A Q&A guide to release of claims agreements for private employers in Wyoming. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Checklist of issues employers should consider in defending against an employee complaint filed with the Massachusetts Commission Against Discrimination (MCAD). This Checklist addresses Massachusetts law.

In Mohamed v. Uber Technologies, Inc., the US Court of Appeals for the Ninth Circuit held that the district court erred in finding the Uber arbitration agreements procedurally and substantively unconscionable.

This Legal Update reports on select federal administrative agency developments which occurred through August 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices, and agreements with agencies

In Vasquez v. Empress Ambulance Service, Inc., the US Court of Appeals for the Second Circuit held that the "cat's paw" theory may be used to support recovery for a retaliation claim in violation of Title VII of the Civil Rights Act of 1964 (Title VII). An employee's retaliatory intent can be attributed to an employer if the employer's negligence was the root cause of the retaliation and resulting adverse employment action.

A Checklist of issues employers should consider in defending against an employee complaint filed with the Georgia State Department of Labor (GDOL) or the City of Atlanta Human Relations Commission (HRC). This Checklist addresses Georgia law.

This Practice Note outlines the process defense counsel should go through to obtain critical discovery in single plaintiff employment discrimination cases brought under California's Fair Employment and Housing Act (FEHA). It includes discovery sought from the plaintiff, such as document requests, interrogatories, requests for admission, and depositions, as well as discovery sought from third parties. It discusses the scope of discovery, types of information that are relevant and critical to common claims brought under the FEHA, and the basic timeline for seeking discovery. It is based on California law but is also useful for identifying types of evidence to seek in federal cases.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Ohio. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under federal and state law. This Checklist is based on the Federal Rules of Civil Procedure and Ohio law.

In Ortiz v. Werner Enterprises, the US Court of Appeals for the Seventh Circuit held that the proper standard for analyzing employment discrimination cases is whether the evidence as a whole permits a reasonable fact-finder to conclude that the plaintiff's protected status caused the adverse employment action. District courts must stop relying on the "convincing mosaic of discrimination" metaphor as a legal standard for analyzing these cases and separating direct and indirect evidence as if they are different legal standards.

A Q&A guide to release of claims agreements for private employers in Idaho. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Vermont. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Yocupicio v. PAE Group, LLC, the US Court of Appeals for the Ninth Circuit held that where a complaint contains class claims and non-class claims, and the class claims do not meet the Class Action Fairness Act of 2005's (CAFA) amount-in-controversy requirement, the amount involved in the non-class claims cannot help satisfy the CAFA jurisdictional amount.

In Smith v. Clark/Smoot/Russell, the US Court of Appeals for the Fourth Circuit held that a relator's violation of the mandatory 60-day sealing of a False Claims Act (FCA) case does not require dismissal with prejudice. The court also reiterated the pleading requirements for an FCA claim under Federal Rule of Civil Procedure (FRCP) 9(b).

In Stilwell v. City of Williams, the US Court of Appeals for the Ninth Circuit held that the retaliation provision of the Age Discrimination in Employment Act (ADEA) does not preclude a public employee from pursuing a First Amendment retaliation claim under Section 1983.

The US Court of Appeals for the Second Circuit held in Doscher v. Sea Port Group Securities, LLC et al. that district courts may look through a petition filed under Section 10 of the Federal Arbitration Act (FAA) to determine if the underlying dispute raises a federal question.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Georgia. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under federal and state law. This Checklist is based on the Federal Rules of Civil Procedure and Georgia law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in New Jersey. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under federal and state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and New Jersey law.

A Q&A guide to release of claims agreements for private employers in Rhode Island. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Legal Update reports on select federal administrative agency developments which occurred through July 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices, and agreements with agencies.

In Bodine v. Cooks Pest Control, Inc., the US Court of Appeals for the Eleventh Circuit held that the non-waiver provision of the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) does not conflict with the Federal Arbitration Act (FAA).

A Q&A guide to release of claims agreements for private employers in Oregon. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Michigan. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Kubala v. Supreme Prod. Servs., Inc., the US Court of Appeals for the Fifth Circuit held, in a Fair Labor Standards Act (FLSA) collective action, that a delegation clause almost identical to the clause in Rent–A–Center was valid and therefore required the arbitrator to decide on threshold arbitrability. The court held that the delegation clause governed despite the fact that the suit was filed before the arbitration policy was presented to the employee on a "take it or leave it" basis. Kubala provided no evidence to counter the employer's claim that it had no notice of the lawsuit prior to issuance of the policy, and the case was submitted to arbitration to determine questions of arbitrability.

In Perry v. MSPB, the US Court of Appeals for the District of Columbia Circuit held that in a presumed "mixed case appeal" where the Merit Systems Protection Board (MSPB) dismisses an employee's appeal based on lack of jurisdiction, employee appeals of that dismissal are heard by the Federal Circuit, not by a US district court.

In Pullen v. Caddo Parish School Board, the US Court of Appeals for the Fifth Circuit clarified that the plaintiff has the burden of proof to demonstrate supervisory status in a sexual harassment case. involving alleged sexual harassment by an individual who served as the plaintiff's supervisor for a portion of the period in question and a non-supervisor for the remainder. The court rejected the plaintiff's argument about jury confusion on liability and damages questions and declined to use a single standard of review. Therefore the Faragher Ellerth defense was available only during the supervisory period.

In Martin v. Yasuda, the U.S. Court of Appeals for the Ninth Circuit confirmed that the determination as to whether defendants waived their right to arbitration through their participation in litigation was an issue for the court, not the arbitrator. The Court went on to hold that the defendants' conduct in waiting nearly 17 months before making a motion to compel arbitration resulted in prejudice to the plaintiffs and a waiver of the defendants' rights to invoke the agreement's arbitration provision.

In Kilcrease v. Domenico Transportation Co., the US Court of Appeals for the Tenth Circuit held that an employee pursuing a claim under the Americans With Disabilities Act (ADA) must present credible evidence at the prima facie stage of the case that he was qualified to perform the job at issue.

In Deadra L. Combs v. City of Huntington, Texas, the US Court of Appeals for the Fifth Circuit held that in a Title VII of the Civil Rights Act of 1964 (Title VII) sexual harassment suit there is no requirement of strict proportionality between attorneys' fees and damages.

In Hospital of Barstow, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that while the National Labor Relations Board (NLRB) lacked a quorum, NLRB regional directors may not have retained authority to certify elections under a consent election agreement providing that the regional director's actions would be final and not subject to eventual Board review.

This Legal Update reports on select federal administrative agency developments which occurred through June 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies.

The Department of Labor (DOL) issued an interim final rule to adjust the amounts of civil penalties assessed in its regulations, as required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). This interim final rule increases penalties imposed under the Employee Retirement Income Security Act of 1974 (ERISA), Occupational Safety and Health Act (OSHA), Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA), among others.

In Cardenas v. US, the US Court of Appeals for the Ninth Circuit held that Justice Kennedy's concurrence from Kerry v. Din states the applicable test to determine whether a visa denial is valid when the denial implicates a constitutional right.

Several federal agencies, including the US Department of Justice (DOJ), the Department of Homeland Security (DHS), and the Department of Labor (DOL), issued interim final rules adjusting for inflation the civil monetary penalties assessed under the Immigration and Nationality Act (INA), including those assessed under the Immigration Reform and Control Act of 1986 (IRCA).

A Q&A guide to release of claims agreements for private employers in Nevada. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Oklahoma. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Equal Employment Opportunity Commission v. Bass Pro Outdoor World, L.L.C., the US Court of Appeals for the Fifth Circuit held that the Equal Employment Opportunity Commission (EEOC) can pursue a pattern-or-practice claim under Section 706 of Title VII of the Civil Rights Act of 1964 (Title VII).

A Q&A guide to release of claims agreements for private employers in Puerto Rico. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in New Mexico. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in North Carolina. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in North Dakota. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Minnesota Court of Appeals' recent decision in Peterson v. City of Minneapolis. This decision held that voluntary participation in an employer's "Respect in the Workplace" process would serve to toll the statute of limitations (as a "dispute resolution process") in an unfair discriminatory practice charge under the Minnesota Human Rights Act.

On June 9, 2016, Christopher J. Collins of Sheppard Mullin Richter & Hampton LLP, Kalpana Kotagal of Cohen, Milstein, Sellers & Toll, PLLC, Justin Mulaire of the US Equal Employment Opportunity, and Anna Pohl, Senior Legal Editor with Practical Law Labor & Employment, presented Effective Conciliation and Demystifying Intervention in EEOC Cases: Perspective from All Sides, a webinar demystifying conciliation and intervention under the federal anti-discrimination statutes. This webinar addresses obligations on the part of employers, charging parties and the EEOC in conciliating and litigating EEOC cases. You can access the recorded webinar here.Click here to download the webinar slides.

A Q&A guide to release of claims agreements for private employers in California. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Illinois. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Law Firm Publication by Foley Hoag LLP discusses the Supreme Judicial Court of Massachusetts' recent decision in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. In this decision, the SJC held that an employee's self-help discovery (accessing, copying and forwarding an employer's confidential documents) may constitute protected activity under the Massachusetts anti-retaliation statute (G.L. c. 151B, § 4), but only if the employee's actions are "reasonable in the totality of the circumstances." To determine reasonableness, the SJC adopted a seven-factor test for courts to apply.

This Legal Update reports on select federal administrative agency developments which occurred through May 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies.

In Southwest Regional Council of Carpenters v. Drywall Dynamics, Inc., the US Court of Appeals for the Ninth Circuit held that the "plausible" standard for evaluating a labor arbitration award is incorrect and misleading because it suggests inquiry into the quality or degree of substantive validity of the arbitrator's interpretation. The correct inquiry should simply be whether the arbitrator looked at and construed the contract.

In a highly anticipated decision, the US Supreme Court recently held that a bare procedural statutory violation, without any concrete harm, does not satisfy Article III's injury-in-fact requirement for standing to sue in federal court. By requiring plaintiffs to demonstrate concrete, "real" harm, the Court's holding may significantly reduce the number of so-called "no-injury" class actions that regularly threaten defendants with staggering liability.

In SEC v. Graham, the US Court of Appeals for the Eleventh Circuit ruled that the SEC's claims for declaratory relief and disgorgement were time-barred under 28 U.S.C. § 2462, which bars the government from bringing suit to enforce any civil fine, penalty, or forfeiture after five years from when the claim first accrued.

In Lewis v. Epic Systems Corp., the US Court of Appeals for the Seventh Circuit held that an employment arbitration provision violates Sections 7 and 8 of the National Labor Relations Act (NLRA) if it precludes employees from seeking any class, collective, or representative remedies in a wage-and-hour dispute. In addition, nothing in the Federal Arbitration Act (FAA) saves this type of ban on collective action, and there is no conflict between the NLRA and the FAA. The Seventh Circuit's decision creates a circuit split with the US Court of Appeals for the Fifth Circuit.

This Standard Clause provides sample language for an Illinois-compliant mandatory arbitration provision of employment-related claims that can be incorporated into a written employment agreement or employee handbook.

This Standard Clause provides sample language for a New York-compliant mandatory arbitration provision of employment-related claims that can be incorporated into a written employment agreement or employee handbook. This Standard Clause has an integrated drafting note with explanations and drafting tips. For a stand-alone agreement with additional provisions, see Standard Document, Mutual Agreement to Arbitrate Employment-Related Disputes (NY).

This Standard Document provides sample language for a New York-specific agreement to arbitrate employment-related claims. This Standard Document has integrated drafting notes with important explanations and drafting tips.

A Q&A guide to release of claims agreements for private employers in Louisiana. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Law Firm Publication by Ford & Harrison LLP addresses an amendment to Tennessee Code Annotated § 26-2-214. Governor Haslam signed the bill which expands the scope of garnishments from the garnishment of salaries, wages, or other compensation to garnishment of "earnings." With this change, which takes effect on September 1, 2016, the scope of garnishments reaches amounts owed to independent contractors as well as employees. The publication also addresses amendments to the Tennessee Lawful Employment Law Act (E-Verify Act) to, among other things, require private employers with 50 or more employees to enroll in the E-Verify program and verify the employment eligibility of new hires. These changes become effective on January 1, 2017.

A Q&A guide to release of claims agreements for private employers in Alaska. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In CRST Van Expedited, Inc. v. EEOC, the US Supreme Court held that a defendant in a Title VII case may be awarded attorneys' fees as a prevailing party even without obtaining a favorable ruling on the merits.

In Olivares v. Brentwood Indus., the Eighth Circuit affirmed the district court's denial of reinstatement and front pay to an employee dismissed due to race where comparable positions had already been filled, there were serious trust issues between the employer and plaintiff, and the plaintiff failed to establish a prima facie case for equitable damages.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Florida. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure and Florida law.

A Q&A guide to release of claims agreements for private employers in Pennsylvania. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Securitas Security Services USA, Inc. the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining and enforcing two separate arbitration agreements with class action waivers, one of which contained an opt-out provision. Also, the NLRB held the employer violated Section 8(a)(1) because language in the arbitration agreements that attempted to preserve employees' rights to file unfair labor practice (ULP) charges would reasonably be understood by employees to restrict their right to file those charges with the NLRB.

A Q&A guide to release of claims agreements for private employers in Texas. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Washington. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Utah. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across several jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Amerisave Mortgage Corporation and Tarlton and Son, Inc., the National Labor Relations Board (NLRB) held that two separate employers violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining arbitration agreements with class action waivers. Also, the NLRB held the employers violated Section 8(a)(1) because they promulgated the arbitration agreements as a response to employees' wage and hour class or collective actions.

This Legal Update reports on select federal administrative agency developments which occurred through April 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices, and agreements with agencies.

In Harbourt v. PPE Casino Resorts Maryland, LLC, the US Court of Appeals for the Fourth Circuit held that casino dealer trainees could state a claim that the employer-provided training program they attended constituted compensable "work" under the Fair Labor Standards Act (FLSA).

A Florida-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on federal and Florida law and is intended for use with an employee dispute or litigation in Florida. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

In EEOC v. Maritime Autowash, Inc., the US Court of Appeals for the Fourth Circuit held that a federal district court erred by denying the Equal Employment Opportunity Commission's (EEOC) application for subpoena enforcement in a Title VII of the Civil Rights Act of 1964 (Title VII) discrimination complaint brought by an undocumented worker.

A Q&A guide to release of claims agreements for private employers in Arkansas. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Kitlinski v. Department of Justice, the Merit Systems Protection Board (MSPB) held that for a federal employee to establish MSPB jurisdiction over a hostile work environment claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the employee must present non-frivolous allegations that an agency subjected him to a pattern of ongoing and persistent harassing behavior based on his military service that was severe or pervasive enough to alter his employment terms and conditions.

In Collado v. J. & G. Transport, Inc., the US Court of Appeals for the Eleventh Circuit held that a defendant's waiver of the right to arbitrate a federal class action claim under the Fair Labor Standards Act (FLSA) did not extend to state law claims that were later filed in an amended complaint.

A Q&A guide to release of claims agreements for private employers in South Dakota. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Advanced Disposal Services East, Inc. v. NLRB, the US Court of Appeals for the Third Circuit held that an employer did not waive its right to challenge a regional director's authority to conduct a representation election by failing to raise the issue before the election. The regional director was selected when the panel heading the judicial functions of the National Labor Relations Board (NLRB) lacked a quorum required by the National Labor Relations Act (NLRA).

In National Football League Management Council v. National Football League Players Association, the US Court of Appeals for the Second Circuit reversed and remanded the decision of the district court and ordered confirmation of the arbitration award that imposed a four-game suspension on New England Patriots quarterback Tom Brady in the Deflategate case.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in California. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure and California law.

A Q&A guide to release of claims agreements for private employers in Mississippi. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in New Jersey. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Wisconsin. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A New York-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on New York law and is intended for use with employees and businesses located in New York. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

In EEOC v. Rite Way Service, Inc., the US Court of Appeals for the Fifth Circuit held that an employee who was terminated soon after reporting to her employer harassing conduct she witnessed against another employee must show that she had a reasonable belief that the discrimination she reported violated Title VII of the Civil Rights Act of 1964 (Title VII).

A Chart that provides a sampling of individual sexual harassment settlements and jury verdicts for federal cases. The Chart is organized by circuit court and the cases span from 2004 to March 2016. When available, information about awards or settlements of attorneys' fees and costs are also provided. Class actions and state court cases are beyond the scope of this resource.

A Q&A guide to release of claims agreements for private employers in Ohio. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Illinois. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Illinois law.

This Legal Update reports on select federal administrative agency developments which occurred through March 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies.

A Q&A guide to release of claims agreements for private employers in West Virginia. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Supreme Court of California's recent ruling on an employer's obligation to provide seating for employees under Industrial Welfare Commission Wage Order No. 7-2001. In Kilby v. CVS Pharmacy, the court held that "nature of the work" refers to the tasks an employee performs at a given location for which he is claiming a right to a suitable seat. Furthermore, whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances, and employers have the burden of proving that a suitable seat is not available.

A Checklist of issues employers should consider in defending against an employee complaint filed with the Illinois Department of Human Rights (Department) or the Illinois Human Rights Commission (Commission). This Checklist addresses Illinois law.

A Checklist of issues employers should consider in defending against an employee complaint filed with the New York State Division of Human Rights (NYSDHR) or the New York City Commission on Human Rights (NYCCHR). This Checklist addresses New York law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in New York. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and New York law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Texas. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Texas law.

This Law Firm Publication by Jackson Lewis P.C. discusses that to further the remedial purpose of the New York City Human Rights Law (NYCHRL), Mayor Bill de Blasio has signed into law five amendments to the New York City Administrative Code. The amendments strengthen civil rights protections, remove language regarding sexual orientation, give the New York City Human Rights Commission the authority to award attorneys' fees, add franchiser, franchisee and lessor to the list of those who cannot discriminate by refusing public accommodations on the basis of a protected class, and make it unlawful to deny someone housing because he is a victim of domestic violence. New York City employers should review their compliance with the NYCHRL.

A Texas-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on Texas law and is intended for use with employees and businesses located in Texas. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

An Illinois-compliant model settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on Illinois law and is intended for use with employees and businesses located in Illinois. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses a recent decision by the California Supreme Court, which upheld as enforceable an arbitration agreement containing a clause allowing the parties to seek provisional relief in a judicial action while still having the remainder of the dispute remain in arbitration. The California Supreme Court's decision in Baltazar v. Forever 21, Inc. found that the carve-out clause permitting provisional relief in addition to arbitration was not substantively unconscionable.

In Graziadio v. Culinary Institute of America, the US Court of Appeals for the Second Circuit held, in matters of first impression for the court, that the economic realities test used to evaluate employers under the Fair Labor Standards Act (FLSA) should be used for evaluating employers under the Family and Medical Leave Act (FMLA). The Second Circuit also validated associational discrimination claims under the Americans with Disabilities Act (ADA) and adopted the burden of proof analysis of other circuit courts in those types of cases.

In Arizona ex rel. Horne v. The Geo Group, Inc., the US Court of Appeals for the Ninth Circuit held that the Equal Employment Opportunity Commission (EEOC) is not required to conciliate claims on behalf of each individual employee before bringing a lawsuit on behalf of a class.

In Monroe v. FTS USA, LLC, the US Court of Appeals for the Sixth Circuit held, in a Fair Labor Standards Act (FLSA) collective action, that representative testimony was appropriate in proving liability for nontestifying employees, an estimated-average approach was appropriate in calculating damages, and that the district court improperly used a 1.5 multiplier to calculate damages for employees paid on a piece-rate basis.

In Gentry v. E. W. Partners Club Mgmt. Co., the US Court of Appeals for the Fourth Circuit held that the district court correctly applied a "but-for" causation standard to an employee's Americans with Disabilities Act (ADA) claim, instead of a Title VII of the Civil Rights Act of 1964 (Title VII) "motivating factor" causation standard.

In Groves v. Communication Workers of America, the US Court of Appeals for the Fourth Circuit held that a hybrid claim under Section 301 of the Labor Management Relations Act (LMRA) requires a causal connection between the union's breach of its duty of fair representation (DFR) and the employee's failure to exhaust a collective bargaining agreement's (CBA) contractual remedies.

In Peabody Holding Company, LLC v. United Mine Workers of America, the US Court of Appeals for the Fourth Circuit held that the "complete arbitration rule" that limits district courts from reviewing arbitration decisions under Section 301 of the Labor Management Relations Act (LMRA) until the arbitrator has ruled on both liability and remedies is a broad prudential rule, not a hard and fast jurisdictional restriction.

A Checklist of issues employers should consider in defending against an employee charge of discrimination filed with the Minnesota Department of Human Rights (MDHR). This Checklist addresses Minnesota law.

A Q&A guide to release of claims agreements for private employers in Connecticut. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Checklist of issues employers should consider in defending against an employee complaint filed with the Colorado Civil Rights Division (CCRD) or the Colorado Civil Rights Commission (CCRC). This Checklist addresses Colorado law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Louisiana. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Louisiana law.

The US Court of Appeals for the District of Columbia Circuit held in Dist. No. 1, Pac. Coast Dist., Marine Engineers' Beneficial Ass'n, AFL-CIO v. Liberty Mar. Corp. that an arbitrator should determine whether the parties' agreement to arbitrate remained in effect when their dispute arose.

This Law Firm Publication by Foley Hoag LLP discusses the Massachusetts Supreme Judicial Court's decision in Bulwer v. Mount Auburn Hospital. This decision highlights the distinction between the burden of proof under federal law and Massachusetts law at summary judgment on an employment discrimination claim. To establish pretext under federal law, a plaintiff must prove that the employer’s reason for terminating an employee was false and that the real reason was unlawful discrimination. By contrast, under Massachusetts law, a plaintiff has a lower burden of proof and can defeat summary judgment merely by showing the employer's reason was false.

In Haynes Building Services, LLC, the National Labor Relations Board (NLRB) affirmed that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining an arbitration agreement that employees would reasonably read to prohibit their filing of unfair labor practices (ULP). Also, contrary to the administrative law judge (ALJ), the NLRB held that the employer violated the NLRA by threatening to file a motion to compel arbitration to enforce the arbitration agreement.

In Ralph's Grocery Company, the National Labor Relations Board (NLRB) continued to hold that employers violate the National Labor Relations Act (NLRA) by maintaining and enforcing mandatory arbitration policies that include, as an employment condition, a waiver of class and collective action rights. One sentence in the policy stating that the filing of charges with the NLRB is permitted is not enough to remove the likelihood that employees would reasonably feel confused about whether they possess this right, given the policy's prominent mentions of mandatory arbitration.

The Equal Employment Opportunity Commission (EEOC) has announced the implementation of nationwide procedures for releasing Respondent position statements to Charging Parties on request and obtaining Charging Parties' responses while an EEOC charge is pending.

A Q&A guide to release of claims agreements for private employers in Florida. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Iowa. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Law Firm Publication by Epstein Becker & Green, P.C. discusses Morgan v. Ramours Furniture Company, Inc., in which a New Jersey appellate court held that an arbitration clause in a handbook is unenforceable if the handbook also contains a disclaimer that it does not create a contract. The court found that it would be inequitable for an employer to claim that the handbook is not a contract when facing an employee's breach of contract suit, but to treat handbook language as contractual when attempting to enforce its arbitration provision.

This Legal Update reports on select federal administrative agency developments which occurred through January 2016, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices, and agreements with agencies.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Minnesota. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Minnesota law.

This Standard Clause provides sample language for a California-compliant mandatory arbitration provision of employment-related claims. It is provided for employers who wish to incorporate a shorter provision as part of a written employment agreement or employee handbook. It should be noted, however, that there are risks to relying on an arbitration provision that is incorporated into a larger document rather than a standalone agreement and special care should be taken to call out the provisions within the larger document, whether by using bold lettering, requiring an employee acknowledgement, or the like. For a stand-alone arbitration agreement with additional provisions, see Standard Document, Mutual Agreement to Arbitrate Employment-Related Disputes (CA). This Standard Clause has integrated drafting notes with important explanations and drafting tips.

This Standard Document provides sample language for a California-specific agreement to arbitrate employment-related claims. This Standard Document has integrated drafting notes with important explanations and drafting tips.

A Q&A guide to release of claims agreements for private employers in Hawaii. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In NLRB v. Community Health Services, Inc., a split panel of the US Court of Appeals for the Tenth Circuit enforced a National Labor Relations Board (NLRB) order that did not reduce backpay awards to employees whose hours were unlawfully reduced by the amount of those employees' interim earnings, awarding backpay without deductions for the interim earnings of employees whose hours were unlawfully reduced.

In Campbell-Ewald Co. v. Gomez, the United States Supreme Court held that an unaccepted offer for complete relief under Federal Rule of Civil Procedure (FRCP) 68 does not moot the plaintiff’s individual claim or putative class claims.

In McDonald's USA, LLC, the National Labor Relations Board (NLRB) approved the consolidation of unfair labor practice (ULP) cases against 31 McDonald's franchisees and the fast food giant as a joint employer of the franchisees' employees and a case management order controlling the trial.

In Tubesing v. USA, the US Court of Appeals for the Fifth Circuit held that a federal employee's claims for fraud and intentional infliction of emotional distress under the Federal Tort Claims Act (FTCA) were preempted by the Civil Service Reform Act (CSRA).

In Nesbitt v. FCNH, Inc., the US Court of Appeals for the Tenth Circuit declined to enforce an arbitration agreement signed by a massage therapy school student that would have effectively prevented her from vindicating her right to seek unpaid wages under the Fair Labor Standards Act (FLSA).

This Legal Update reports on select federal administrative agency developments which occurred through December 2015, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices, and agreements with agencies

In Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, the US Court of Appeals for the Eighth Circuit held that under Section 212(n)(2)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. § 1182(n)(2)(A)), reasonable cause to investigate a single allegation of H-1B Labor Condition Application (LCA) violations in an aggrieved-party complaint does not establish a reasonable cause to conduct a comprehensive investigation of an employer.

In EEOC v. CVS Pharmacy, Inc., the US Court of Appeals for the Seventh Circuit held that Title VII does not authorize the Equal Employment Opportunity Commission (EEOC) to sue an employer without first engaging in informal resolution and alleging that the employer engaged in discrimination. The court upheld a grant of summary judgment to CVS, finding that the EEOC's claim that the pharmacy retailer's severance agreement violated Title VII failed to state a discrimination or retaliation claim.

A Note providing an overview of California's Labor Code Private Attorneys General Act of 2004 (PAGA), which authorizes employees to bring enforcement actions on behalf of the state for alleged violations of the California Labor Code. This Note discusses how civil penalties are assessed and distributed, notice and timing requirements for filing a PAGA action, and potential cure provisions available to employers.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Colorado. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure and Colorado law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Missouri. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Missouri law.

A Checklist of affirmative defenses to consider asserting when responding to a complaint in employment litigation cases in Tennessee. This Checklist considers affirmative defenses that a defendant employer may assert in various types of employment cases, including discrimination, harassment, wage and hour, and unlawful termination under state law. This Checklist is based on the Federal Rules of Civil Procedure (FRCP) and Tennessee law.

In Evans v. Loveland Automotive Investments, Inc., the US Court of Appeals for the Tenth Circuit held that recovering both compensatory liquidated damages under the Fair Labor Standards Act (FLSA) and a statutory penalty under a state law does not constitute double recovery.

In Brandon v. The Sage Corporation, the US Court of Appeals for the Fifth Circuit held that an employee did not suffer an adverse employment action when threatened with a pay cut by a company director who was not in the employee's chain of command. The court affirmed the district court's dismissal of the Title VII retaliation claim.

This Law Firm Publication by Jackson Lewis P.C. addresses Palacio v. Jan & Gail's Care Homes, Inc., in which the California Court of Appeal held that a policy at a residential care facility for developmentally disabled individuals, requiring employees to waive their right to an uninterrupted meal period, did not violate wage and hour laws common to the class members under the California Labor Code and Industrial Welfare Commission Wage Order No. 5-2001. The court denied class certification in the action, ruling that the 24-hour residential care facility did not need to inform employees that they could revoke a required waiver of their right to uninterrupted meal periods.

In Bristol Farms, the National Labor Relations Board (NLRB) refused to approve a proposed settlement of an unfair labor practice (ULP) proceeding regarding an employer maintaining and enforcing a mandatory arbitration agreement to compel individual arbitration of a pending wage class action. Under the proposed settlement, the employer would rescind and replace that agreement with a voluntary arbitration agreement containing a class and collective action waiver.

In Professional Janitorial Services of Houston, the National Labor Relations Board (NLRB) held that if an employer's arbitration policy fails to include a sufficiently clear statement that all claims arising under the National Labor Relations Act (NLRA), without limitation, are excluded from the policy's coverage, employees would reasonably conclude that the employer's arbitration policy required the arbitration of claims that might otherwise be filed as unfair labor practice (ULP) charges with the NLRB.

In Lorenzo v. Prime Communications, L.P., the US Court of Appeals for the Fourth Circuit held that a signed acknowledgment form stating that the terms of an employee handbook were merely guidelines nullified any implied agreement to be contractually bound by the handbook's terms, including its arbitration provision. The court also found that the deadline to seek permission to appeal a class certification ruling could not be extended based on rules that accommodate the time needed to effect service.

Social media has become an unavoidable part of modern life, affecting employers in good ways and bad. For various reasons, many employers want to restrict employees' post-employment social media conduct on platforms such as Facebook, LinkedIn, or Twitter by entering into a non-competition or non-solicitation agreement with their employees. Social media and the internet have been changing how the courts view what is a reasonable and therefore enforceable restrictive covenant. Practical Law has published several resources to help employers navigate this changing legal landscape.

In DeGrandis v. Children's Hospital Boston, the US Court of Appeals for the First Circuit held that an employee's last chance agreement (LCA), which precluded the employee and his union from using a collective bargaining agreement (CBA) grievance and arbitration procedure, extended the statute of limitations period for his claim, that the employer breached the CBA by terminating him without just cause, from six months to six years.

This Law Firm Publication by Jackson Lewis P.C. discusses An Act Concerning An Employer's Failure to Pay Wages (Senate Bill No. 914, Public Act No. 15-86), a bill requiring any employer that pays its employees less than the minimum wage or overtime wages that are due to award the employee attorney's fees and costs, as well as double the full amount of the minimum wage or overtime wages, unless the employer can establish good faith. The Act, which replaces and supersedes prior Connecticut case law, became effective on October 1, 2015.

In NLRB v. Fresh and Easy Neighborhood Market, Inc., the US Court of Appeals for the Ninth Circuit upheld a district court's order enforcing a subpoena served on an employer before a National Labor Relations Board (NLRB) hearing. The Ninth Circuit held that the union's defective service of the subpoena on the employer's counsel was insufficient to excuse the employer from its obligation to petition to revoke the subpoena according to agency procedure.

In Amex Card Services Co., the National Labor Relations Board (NLRB) held that the employer unlawfully maintained a mandatory arbitration policy with class and collective action waivers. Unlike the policies in other D.R. Horton and Murphy Oil progeny, the Amex policy contained a disclaimer that it did not apply to NLRA claims and was not intended to preclude employees from exercising their rights under the National Labor Relations Act (NLRA), including to file unfair labor practice (ULP) charges with the NLRB.

A Q&A guide to release of claims agreements for private employers in Alabama. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Murphy Oil USA, Inc. v. NLRB, the US Court of Appeals for the Fifth Circuit held that an employer did not commit unfair labor practices by requiring employees to sign arbitration agreements waiving their right to pursue class or collective claims. The court granted the employer's petition to review a decision by the National Labor Relations Board (NLRB) finding the agreements unlawful.

Registered representatives of broker dealers and their employers are required by FINRA regulations to resolve their employment disputes through arbitration. In New Jersey, however, the Appellate Division recently refused to enforce that requirement in an employment dispute between a brokerage firm and its stockbroker employee because the industry Form U-4 does not contain express language waiving the right to a jury trial.

This Legal Update reports on select federal administrative agency developments which occurred October 1 through November 2, 2015, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies of states and sovereign nations.

This Law Firm Publication by Epstein Becker & Green, P.C. discusses the New Jersey Appellate Division's recently published decision in Barr v. Bishop Rosen & Co. in which it applied the New Jersey Supreme Court's decision in Atalese v. U.S. Legal Services Group LP. The Appellate Division held that a mandatory arbitration provision in a Financial Industry Regulatory Authority (FINRA) Form U-4, which encompassed disputes between an employer and employee, was unenforceable because it did not state that that the employee was waiving the right to sue in court.

A Q&A guide to release of claims agreements for private employers in Maine. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Arizona. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Kentucky. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Barrett v. Illinois Department of Corrections, the US Court of Appeals for the Seventh Circuit held that the two-year statute of limitations for Family and Medical Leave Act (FMLA) claims runs from the date when the employer's last alleged FMLA violation occurred, not from the date when the employee was terminated due to excessive absences.

A Q&A guide to release of claims agreements for private employers in Missouri. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Delaware. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A Q&A guide to release of claims agreements for private employers in Massachusetts. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement as well as employment claims or specific contract language that should be included or excluded. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

This Law Firm Publication by Jackson Lewis P.C. discusses AB 1506, an amendment to California's Labor Code Private Attorneys General Act of 2004 (PAGA). AB 1506 provides employers the right to receive notice of and an opportunity to cure a violation for failing to provide its employees with specific information regarding their wages, as required under California Labor Code Section 226(a), before an employee can file suit. The amendment, which was signed by Governor Jerry Brown on October 2, 2015, is effective immediately.

This Legal Update reports on select federal administrative agency developments which occurred through September 2015, and which are not covered in our full-length Legal Updates, such as information about agency posters, notices and agreements with agencies of states and sovereign nations.

In UC Health v. NLRB and SSC Mystic Operating Co. LLC v. NLRB, the US Court of Appeals for the DC Circuit held that the National Labor Relations Board’s (NLRB) regional directors had authority under the National Labor Relations Act (NLRA) to conduct elections and certify election results during the period when the panel heading the NLRB’s judicial and election functions lacked an NLRA-required quorum.

A collection of resources to assist employment lawyers in resolving matters without litigation. Aimed at unionized and non-union private sector workplaces, the selected resources will assist attorneys in resolving employment disputes through mediation or arbitration, rather than through litigation.

In Schumann v. Collier Anesthesia, P.A., the US Court of Appeals for the Eleventh Circuit held that determining whether a student intern performing work to obtain professional certification is an employee under the Fair Labor Standards Act (FLSA) depends on whether the employer or the intern primarily benefits from the working arrangement. The court applied the primary beneficiary test as recently articulated by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc.

In EEOC v. Sterling Jewelers Inc., the US Court of Appeals for the Second Circuit found that under Title VII of the Civil Rights Act of 1964 (Title VII), a court can review whether the Equal Employment Opportunity Commission (EEOC) conducted an investigation prior to a lawsuit, but not the sufficiency of that EEOC investigation.

In On Assignment Staffing Services, Inc., the National Labor Relations Board (NLRB) held that an opt-out provision did not save an arbitration agreement with a class action waiver from being a mandatory condition of employment, unlawful under D. R. Horton and Murphy Oil.

A collection of resources to assist both management and plaintiffs' attorneys in litigating employment cases. Aimed at cases involving private sector employers, the following selected resources can assist attorneys with case assessment and preparation, discovery planning and settlement strategies.

A Chart that provides a sampling of individual pregnancy discrimination settlements and jury verdicts for federal cases. The Chart is organized by circuit court and the cases span from 2005 to 2015. When available, information about awards or settlements of attorneys' fees and costs are also provided. Class actions and state court cases are beyond the scope of this resource.

A Q&A guide to release of claims agreements for private employers in Virginia. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Gomez v. Tyson Foods, Inc. and Acosta v. Tyson Foods, Inc., the US Court of Appeals for the Eighth Circuit overturned two large jury verdicts against Tyson Foods, each from a hybrid Fair Labor Standards Act (FLSA) collective action and Nebraska wage and hour law class action, in part because the named plaintiffs failed to timely file consent forms as is required under Section 216(b) of the FLSA.

In Leslie's Poolmart, Inc., the National Labor Relations Board (NLRB) formally held that an employee who files an opt-out class action engages in concerted activity protected by the National Labor Relations Act (NLRA).

This Law Firm Publication by Jackson Lewis P.C. discusses Universal Protection Service LP v. Superior Court, in which the California Court of Appeal held that an employment agreement incorporating the American Arbitration Association's (AAA) National Rules for the Resolution of Employment Disputes gave an arbitrator the power to decide the arbitrability of classwide disputes. The court denied Universal's petition to set aside the trial court's order compelling class arbitration, and found that although the arbitration agreement (drafted by Universal) did not specifically proscribe how or whether class actions might be handled, the AAA rules that were incorporated by reference into the agreement granted the arbitrator authority to decide threshold jurisdictional issues, including the arbitrability of class claims.

In Hansler v. Lehigh Valley Hosp. Network, the US Court of Appeals for the Third Circuit held that when a Family and Medical Leave Act (FMLA) certification submitted by an employee is insufficient under 29 U.S.C. § 2613(b), the employer, under 29 C.F.R. § 825.305(c), must advise the employee what information is necessary to make the certification complete and must provide the employee with time to cure. The Third Circuit also held that where an employer fails to comply with these regulatory requirements, therefore prejudicing the employee, the employee may state a claim for interference under 29 U.S.C. § 2615(a)(1).

In Countrywide Fin. Corp., the National Labor Relations Board (NLRB) affirmed that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining an arbitration agreement that employees would reasonably read to prohibit their filing of unfair labor practices (ULP). Also, contrary to the ALJ, the Board held that the employer violated the NLRA by enforcing the arbitration agreement through its district court motion to compel arbitration.

This Standard Clause provides sample language for a New Jersey-compliant mandatory arbitration provision of employment-related claims that can be incorporated into a written employment agreement or employee handbook. This Standard Clause has an integrated drafting note with explanations and drafting tips.

This Standard Document provides sample language for an Ohio-specific agreement to arbitrate employment-related claims. It complies with the Federal Arbitration Act and Ohio law and is intended for use by employers with employees in Ohio. This Standard Document has integrated drafting notes with important explanations and drafting tips.

This Standard Document provides sample language for a Florida-specific agreement to arbitrate employment-related claims. It complies with the Federal Arbitration Act and Florida law and is intended for use by employers with employees in Florida. This Standard Document has integrated drafting notes with important explanations and drafting tips.

Resources to help counsel when settling employment disputes. This Legal Update includes links to resources with strategy tips from both the employer's and employee's perspectives, sample settlement and separation agreements with drafting notes, recent jury verdicts and settlements and information about mediating employment disputes.

In Jones v. SEPTA, the US Court of Appeals for the Third Circuit held that an employee's paid suspension pending an investigation of alleged workplace wrongdoing is not an adverse employment action for purposes of a substantive Title VII claim.

A Q&A guide to release of claims agreements for private employers in Colorado. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In DeMasters v. Carilion Clinic, the US Court of Appeals for the Fourth Circuit held that assessing whether an employee engaged in oppositional activity for purposes of establishing a Title VII retaliation claim requires a court to consider the employee's course of conduct as a whole. The court also held that the manager's rule, which precludes certain employees with discrimination-reporting responsibilities from pursuing retaliation claims, does not apply to Title VII cases.

In Brennan v. Opus Bank, the US Court of Appeals for Ninth Circuit applied federal law to hold that incorporation of American Arbitration Association (AAA) rules in an arbitration agreement constitutes clear and unmistakable evidence of an intention to delegate the question of arbitrability to an arbitrator. In addition, where there are multiple severable arbitration agreements, a claimant must assert the unconscionability of the one that is at issue to defeat arbitrability.

In Cheeks v. Freeport Pancake House, Inc., the US Court of Appeals for the Second Circuit held that parties cannot enter into private settlement of claims under the Fair Labor Standards Act (FLSA) by filing a stipulation of dismissal with prejudice, unless the settlement is first approved by the district court or the US Department of Labor (DOL). The Second Circuit concluded that the FLSA is an exception to Federal Rule of Civil Procedure (FRCP) 41's general rule that parties may stipulate to the dismissal of an action without involving the court.

In France v. Johnson, the US Court of Appeals for the Ninth Circuit held that an average age difference of less than ten years between an Age Discrimination in Employment Act (ADEA) plaintiff and the plaintiff's replacements creates a rebuttable presumption that the age difference was insubstantial. The Ninth Circuit adopted the Seventh Circuit's approach but found that a 54-year old US Department of Homeland Security (DHS) border patrol agent who was not promoted while four candidates ranging in age from 44 to 48 were promoted nevertheless rebutted the presumption and established a prima facie case of age discrimination.

In Neiman Marcus Group, Inc., the National Labor Relations Board (NLRB), relying on D.R. Horton and Murphy Oil, ordered the employer to notify the court presiding over a former employee's pending collective wage and hour action that it was rescinding the employee's mandatory arbitration agreement containing class and collective action waivers and would no longer rely on it to oppose the litigation and seek to compel arbitration.

In Littlejohn v. City of New York, the US Court of Appeals for the Second Circuit held that pleading requirements in the US Supreme Court's Ashcroft v. Iqbal decision, that a complaint contain facts stating a plausible claim, apply to Title VII employment discrimination complaints. The court also held that Iqbal's plausibility requirement does not affect the temporary presumption of discriminatory motivation that benefits plaintiffs during the prima facie phase in employment discrimination cases under the so-called "McDonnell Douglas quartet" of cases.

In SW General, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that former Acting General Counsel of the National Labor Relations Board (NLRB) Lafe Solomon served in violation of the Federal Vacancies Reform Act of 1998 (FVRA).

A Q&A guide to release of claims agreements for private employers in New York. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In 200 E. 81st Rest. Corp. d/b/a Beyoglu, the National Labor Relations Board (NLRB) held that a single employee bringing a collective action on behalf of himself and other employees under the Fair Labor Standards Act (FLSA) has engaged in protected concerted activity under the National Labor Relations Act (NLRA).

In Burgis v. New York City Department of Sanitation, a case of first impression, the US Court of Appeals for the Second Circuit held that statistics alone may be sufficient to warrant an inference of discriminatory intent in a class action alleging employment discrimination under Section 1981 or the Equal Protection Clause of the Fourteenth Amendment, but they must be statistically significant and must make other plausible non-discriminatory explanations very unlikely.

In Davis v. Bombardier Transportation Holdings (USA) Inc., the US Court of Appeals for the Second Circuit held that the Lilly Ledbetter Fair Pay Act of 2009 applies to traditional pay-discrimination claims involving discriminatory compensation practices but not to discrimination claims in which demotions and other adverse employment actions result in a pay reduction. The Second Circuit found that an employee's time-barred disability discrimination claim was not resurrected by the Ledbetter Act.

In Socorro Maximo v. 140 Green Laundromat, et al., the US District Court for the Southern District of New York held that in a Fair Labor Standards Act (FLSA) overtime action, the employer's Rule 68 offer of judgment is a complete offer of relief under the FLSA where the plaintiff stipulated to the amount of overtime due and no other putative collective action members had opted in or submitted an affidavit in favor of conditional certification.

In United States v. Salman, the US Court of Appeals for the Ninth Circuit declined to extend a controversial appellate ruling from the Second Circuit that raised the bar for prosecutors to secure insider trading convictions. In an interesting twist, Southern District of New York Judge Jed Rakoff, sitting in the Ninth Circuit by designation, wrote the opinion. In it, the Ninth Circuit held that proof that an insider disclosed material, nonpublic information with the intent to benefit a trading relative or friend is sufficient to establish the fiduciary element of insider trading, even without any tangible pecuniary benefit to the insider.

In Butler v. Drive Automotive Industries of America, Inc., the US Court of Appeals for the Fourth Circuit held that a staffing agency and its customer may be liable under Title VII of the Civil Rights Act of 1964 (Title VII) as joint employers and that it will apply a combination of the control test from common law agency principles with an economic realities test when evaluating whether entities are joint employers under Title VII.

This Law Firm Publication by Jackson Lewis P.C. discusses the Puerto Rico Supreme Court's decision in Randolfo Rivera San Feliz et al v. Junta de Directores de Firstbank Corporate et al. In Randolfo Rivera, a banking executive sued his former employer and the individual directors of the employer's board when his employment was terminated. Since termination required approval of two-thirds of the board's members, the employee alleged that they wrongfully allowed the termination to occur in violation of his employment agreement. The Puerto Rico Supreme Court upheld the dismissal of the action because non-shareholders lack standing to sue individual directors of a corporation for alleged fiduciary duty violations. The court stated that a breach of fiduciary duty claim in such a case requires an existing relationship between shareholders and a corporation's board of directors. The court also held that the board of directors could not be liable for breach of contract because the individual board members were not party to the contract between the corporation and its employee.

In Appleberry v. DHS, the US Court of Appeals for the Federal Circuit affirmed an arbitrator's judgment that a federal employee was precluded from challenging the bases for her removal from the Department of Homeland Security (DHS) because she failed to follow the exclusive process for the remedy that she elected.

In Children's Hospital and Research Center of Oakland, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board (NLRB) must decide when an employer's obligation to arbitrate grievances from a subsequently-decertified union, under an expired collective bargaining agreement (CBA) ends and its duty to bargain exclusively with its employees' new union begins.

In Phipps v. Wal-Mart Stores, Inc., the US Court of Appeals for the Sixth Circuit rejected a blanket rule that plaintiffs may not file follow-on class actions to litigate the claims of unnamed class members. It held that a subsequent class action by unnamed class members was not time-barred under the American Pipe tolling rule, where the class neither seeks relitigation or correction of the earlier class claims, and the class action was filed within the applicable tolling period deadlines.

An expert Q&A with George L. Washington, Jr. of Orange Business Services about the impact of the US Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, Inc., which clarified that an applicant seeking to prove a disparate treatment claim under Title VII of the Civil Rights Act of 1964 (Title VII) only must show that the need for a religious accommodation was a motivating factor in the prospective employer's adverse decision and not that the employer had actual knowledge of the applicant's need for an accommodation.

This California wage and hour Law Firm Publication by Epstein Becker & Green, P.C. discusses Verdugo v. Alliantgroup, L.P., in which the California Court of Appeal held that a party seeking to enforce a forum selection clause regarding unwaivable statutory rights (wage and hour claims) has the burden of showing that enforcement of the clause will not diminish any rights under California law. A party can meet this burden by showing that the foreign forum applies California law or provides the same or greater rights as California. The Verdugo decision could be used to prevent California courts from enforcing out-of-state forum selection clauses in restrictive covenant cases.

In Gad v. Kansas State Univ., the US Court of Appeals for the Tenth Circuit held that the Title VII requirement that a claimant verify the charges against an employer (by signing an Equal Employment Opportunity Commission (EEOC) formal charge document) is non-jurisdictional and does not divest the federal courts of subject-matter jurisdiction. Failure to comply with the verification requirement is not a conclusive impediment to suit. Like other conditions precedent, verification can be asserted as a defense to a claim.

In Bodle v. TXL Mortgage Corporation, the US Court of Appeals for the Fifth Circuit held that two employees' overtime claims under the Fair Labor Standards Act (FLSA) were not barred by their release in a private settlement of a prior state court action that did not involve a bona fide dispute under the FLSA or any claim for unpaid wages. While the court asserted that private settlements reached over a bona fide dispute regarding the FLSA and unpaid overtime are sufficient to bar a subsequent FLSA suit, the parties in this case had not addressed the FLSA or unpaid overtime in their settlement of the state action involving the employees' non-compete restrictions.

The US Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR Council) published in the Federal Register proposed guidance and regulations to implement the Fair Pay and Safe Workplaces Executive Order. Parties must submit written comments on or before July 27, 2015.

In McKinney v. Southern Bakeries LLC, the US Court of Appeals for the Eighth Circuit vacated a section 10(j) injunction because the National Labor Relations Board (NLRB) failed to establish that irreparable harm would result absent injunctive relief. As irreparable harm, the NLRB pointed to a general decline in union membership, erosion of the employer-union relationship, and to the likelihood that the NLRB's ultimate remedy would not compensate employees for monetary and other benefits that the union would have been able to secure in the interim. Noting that the union had been out of favor with the employees for a long time, the court found that the NLRB had failed to show that irreparable harm would occur if, while the ordinary NLRB adjudicatory processes ran their course, the employer were not ordered to recognize and bargain with the union.

In Foster v. Univ. of Maryland-E. Shore, the US Court of Appeals for the Fourth Circuit reversed a district court's grant of summary judgment to an employer and held that a plaintiff is not required to show a but-for cause to establish a prima facie retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII).

In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that an applicant seeking to prove a disparate-treatment claim under Title VII of the Civil Rights Act of 1964 (Title VII) only must show that the need for a religious accommodation was a motivating factor in the prospective employer's adverse decision, and not that the employer had actual knowledge of the applicant's need for an accommodation based on his religious practice.

In Pre-Paid Legal Services, Inc. v. Cahill, the US Court of Appeals for the Tenth Circuit affirmed an order lifting the stay of the district court's proceedings and resuming the litigation, after the arbitrators terminated the arbitration due to defendant's failure to pay his share of the arbitration fees.

This Law Firm Publication by Jackson Lewis P.C. discusses the recent decision in Williams v. Superior Court (Marshalls), in which the California Court of Appeal upheld the trial court's order limiting the scope of discovery under the California Labor Code Private Attorneys General Act (PAGA). In Williams, the court held that before the plaintiff could obtain statewide discovery under PAGA, he must show that he was aggrieved by Labor Code violations and that Marshalls' practices were uniform throughout the company. The court also approved Marshalls' third party privacy objections to the statewide disclosure of employee names and contact information.

The US Department of Labor (DOL) has published in the Federal Register a final rule responding to comments on and establishing the final text of the revised regulations governing practice and procedure for proceedings before the DOL, Office of Administrative Law Judges (OALJ). The OALJ hears claims involving, among other things, whistleblower and other workplace retaliation, immigration and occupational diseases and injuries. This rule is effective June 18, 2015.

In Brown v. Nucor Corporation, the US Court of Appeals for the Fourth Circuit held that the district court misapprehended the implications of Wal-Mart Stores, Inc. v. Dukes and its application to the commonality requirement set out in Federal Rule of Civil Procedure (FRCP) 23(a)(2).

In Ashbey v. Archstone Property Management, Inc., the US Court of Appeals for the Ninth Circuit held that an employee knowingly waived his right to a judicial forum for his Title VII claim when he signed an acknowledgment that explicitly provided notice of the company's dispute resolution policy.

In Boyer-Liberto v. Fontainebleau Corp., the US Court of Appeals for the Fourth Circuit vacated a grant of summary judgment in favor of an employer and held that an isolated incident of racial harassment can create a hostile work environment. The court also held that an employee is protected from retaliation for reporting an isolated incident of harassment, if the incident is physically threatening or humiliating. This decision overrules the court's previous decision in Jordan v. Alternative Resources Corp.

In Chesapeake Energy Corporation, the National Labor Relations Board (NLRB), applying D.R. Horton and Murphy Oil USA, found that a supervisor's mandatory arbitration agreement with class action waiver violates Section 8(a)(1) of the National Labor Relations Act (NLRA) because employees would reasonably construe it as prohibiting them from filing unfair labor practice (ULP) charges with the NLRB and from pursuing all employment-related claims on a collective or class basis in all forums.

The US Equal Employment Opportunity Commission (EEOC) announced that it will begin, in 11 of its offices, a pilot program called ACT Digital, that will allow the digital transmission of discrimination charge documents, notices and communication between employers and the agency. The pilot program is the EEOC's initial step in transitioning to a streamlined online charge system.

This California Law Firm Publication by Jackson Lewis P.C. addresses Williams v. Chino Valley Ind. Fire District, in which the California Supreme Court found that a prevailing defendant in a California Fair Employment and Housing Act (FEHA) case must demonstrate that the plaintiff's FEHA claim was frivolous, unreasonable or groundless in order to recover the litigation costs. The court determined that FEHA was an exception to the provision in the California Code of Civil Procedure (CCP) that states that prevailing defendants could recover costs as a matter of right. Prior to Williams, California courts typically applied this CCP standard, which is consistent with the federal Title VII standard. The California Supreme Court found that the standard used for recovering attorneys' fees under FEHA should apply to the recovery of costs as well. The court noted that the statutory language and legislative history favor this standard and that it meets public policy because the financial risk of possibly paying large cost awards might discourage individuals from bringing meritorious suits. The Williams ruling will likely increase the number of discrimination lawsuits because the financial risk of filing a potentially meritless suit is diminished.

On May 7, 2015, Practical Law and Epstein Becker & Green, P.C. presented a webinar providing insights into recent developments and expected trends in the evolving legal landscape of trade secrets and employee non-competition agreements. This webinar focused on how employers can navigate this developing area and effectively protect client relationships and proprietary information. You can access the recorded webinar here. Click here to download the webinar slides.

In Mach Mining, LLC v. E.E.O.C., the US Supreme Court held that courts do have judicial review over whether the Equal Employment Opportunity Commission (EEOC) has fulfilled its duty under Title VII of the Civil Rights Act of 1964 (Title VII) to conciliate, however the scope of judicial review is narrow, enforcing only the EEOC's statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance.

In Jenkins v. City of San Antonio Fire Department, the US Court of Appeals for the Fifth Circuit held that when a party's receipt of a right to sue notice sent by the Equal Employment Opportunity Commission (EEOC) is unknown or in doubt, courts will presume that the notice was received three days after it was mailed. Applying the three-day presumption, the Fifth Circuit found that a fire department employee's discrimination and retaliation claims were untimely and affirmed a grant of summary judgment to the employer.

A Q&A guide to release of claims agreements for private employers in Maryland. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

In Flyte Tyme Worldwide, the National Labor Relations Board (NLRB) denied employees' request to withdraw an unfair labor practice (ULP) charge against their employer stemming from the employer's mandatory arbitration policy that contained a class and collective action waiver requirement. Although the parties had agreed to a settlement of the related wage and hour class and collective action, the Board denied the ULP withdrawl request because the settlement did not effectuate the greater National Labor Relations Act (NLRA) purposes of preventing ULPs and ensuring employees' rights to engage in collective action concerning terms and conditions of employment.

This California Law Firm Publication by Jackson Lewis P.C. discusses Serafin v. Balco Properties Ltd. LLC, in which the California Court of Appeal held that the clear, mandatory arbitration policy signed by an employee bound her to arbitrate all claims against her former employer. In Serafin, the court stayed the lawsuit until after arbitration (which ultimately favored Balco) because the plaintiff had signed Balco's "Mandatory Arbitration Policy." The Court of Appeal rejected the employee's argument that other courts had found written agreements to arbitrate to be not knowing, voluntary or fair. In those cases, the agreements were part of a group of policies in a handbook and were not intended to have the binding nature of a contract. The Balco arbitration agreement was a stand-alone document clearly requiring employee compliance. In addition, because Balco also provided an explanation of the agreement by a Human Resources manager, the court found that the company had ensured a knowing, voluntary and fair agreement to arbitrate.

A Pennsylvania-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on federal and Pennsylvania law and is intended for use with employees and businesses located in Pennsylvania. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

In Alvarado v. Corporate Cleaning Services, Inc., the US Court of Appeals for the Seventh Circuit, due to concerns regarding plaintiffs' lawyers' resolution of the appeal, took the uncommon step of dissolving the parties' stipulation dismissing the plaintiffs' appeal, choosing instead to affirm the district court's ruling on the merits.

A Massachusetts-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on Massachusetts law and is intended for use with employees and businesses located in Massachusetts. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

A New Jersey-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on New Jersey law and is intended for use with employees and businesses located in New Jersey. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

A Legal Update providing guidance for employers considering counterclaims against their current and former employees. This Update discusses counterclaims employers may assert, such as claims for breach of fiduciary duty or the duty of loyalty arising out of the employment relationship, and temporary or permanent injunctive relief for an employee's breach of obligations under a restrictive covenant, as well as the risk of a retaliatory conduct claim by the employee.

This wage and hour Law Firm Publication by Fisher & Phillips LLP addresses McCann v. Sullivan University, in which the Kentucky Court of Appeals held that the Kentucky Wages and Hours Act (KWHA) does not permit representative wage and hour actions. The federal Fair Labor Standards Act (FLSA) contains language allowing lawsuits that are brought on behalf of "other employees similarly situated." The Kentucky Court of Appeals noted that, despite several previous state and federal cases allowing representative actions under the KWHA, the KWHA's language sharply contrasts with the FLSA, plainly allowing only for actions brought on behalf of "himself, herself or themselves."

In Verizon New England, Inc., the National Labor Relations Board (NLRB) declined to defer to an arbitration award finding that unionized employees were violating their collective bargaining agreement’s (CBA) express or implied picketing ban by posting protest placards in their cars parked on the employer’s premises while they were working. The NLRB found that the award was clearly repugnant to the National Labor Relations Act (NLRA) and that the employer unlawfully directed employees to remove the protest placards from their cars.

In Aircraft Service International, Inc. v. International Brotherhood of Teamsters Local 117, the US Court of Appeals for the Ninth Circuit joined several other circuits in holding that a party seeking to enjoin a strike under the Railway Labor Act (RLA) must, under Section 8 of the Norris-LaGuardia Act (NLA), make every reasonable effort to settle the dispute before petitioning for an injunction. The Ninth Circuit reversed and vacated a declaratory judgment and injunction granted to an employer facing a potential strike by non-union airport employees.

In Fraternal Order of Police Metro Transit Police Labor Committee, Inc. v. Washington Metropolitan Area Transit Authority, the US Court of Appeals for the Fourth Circuit held that an arbitration award reinstating employment a first time may not be enforced in federal court to reinstate employment a second time, where unrelated events led to the second termination and a contracted grievance process has not been exhausted.

In Raymond James Financial Services, Inc. v. Fenyk, the US Court of Appeals for the First Circuit reversed a district court's decision to vacate an arbitration award, finding that although the arbitrators' decision may have been incorrect as a matter of law, it was not beyond the scope of the panel's authority.

This Law Firm Publication by Jackson Lewis, P.C. addresses Utah Governor Gary Herbert's March 12, 2015 signing of Senate Bill 296, which protects LGBT people from employment and housing discrimination and retaliation, while also protecting religious expression. The law makes it illegal to base employment decisions on sexual orientation, gender identity or expression, but does not prevent employers from adopting reasonable standards for grooming and dress or designating sex-specific facilities. Under the law, there are certain exemptions for religious organizations and universities, and protections are provided for individual religious belief and expression. Utah is the first state to enact legislation seeking to balance LGBT rights and religious expression and the bill received support from both major political parties as well as LGBT leaders and religious leaders.

A Q&A guide to release of claims agreements for private employers in Minnesota. This Q&A addresses statutory and common law claims that may be released in a valid and enforceable written agreement, as well as employment claims or specific contract language that should be included or excluded. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Employment Claims in Release Agreements: State Q&A Tool).

A California-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on California law and is intended for use with employees and businesses located in California. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

In EEOC v. Allstate Insurance Co., the US Court of Appeals for the Third Circuit affirmed a district court’s granting of summary judgment to employer Allstate Insurance Company in a federal retaliation action brought by the Equal Employment Opportunity Commission (EEOC) on behalf of Allstate employee sales agents who had been required to sign a release as a condition for continuing to work with Allstate as independent contractors. The court held that the sales agents received valid consideration in exchange for their releases, and further found that the sales agents did not engage in protected activity nor did Allstate take any adverse action against them.

A Checklist of issues employers should consider in defending against an employee complaint filed with the California Department of Fair Employment and Housing (DFEH). This Checklist addresses California law.

The General Counsel for the National Labor Relations Board (NLRB) issued an operations memorandum addressing when it is proper for the NLRB to defer to an arbitrator’s decision, a pending arbitration or a grievance settlement. The memorandum comes in the wake of the NLRB’s decision in Babcock & Wilcox Construction Co., Inc., which changed long-standing precedent concerning the standards for when the NLRB should defer prosecution of unfair labor practice (ULP) charges where the labor arbitration or grievance settlements arguably could resolve interrelated claims under the National Labor Relations Act (NLRA).

In Ozark Automotive Distributors, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit vacated a National Labor Relations Board (NLRB) order requiring an employer to bargain with a recently certified union. The NLRB's affirmance of an NLRB hearing officer’s decision in the underlying post-election objections hearing to quash subpoenas relevant to whether certain employees were acting as union agents constituted prejudicial error to the employer.

In Roach v. T.L. Cannon Corp., the Second Circuit reversed a district court’s denial of Rule 23 class certification in a wage and hour case, holding that a 2013 Supreme Court decision did not require that class certification only be granted when damages are measurable on a classwide basis. As the district court’s decision was based solely on a misreading of the Supreme Court decision, the Second Circuit remanded and reaffirmed existing second circuit case law holding that Rule 23 class certification cannot be denied solely because damages must be determined on an individual basis.

This Law Firm Publication by Ford & Harrison LLP discusses a New Jersey Supreme Court opinion issued on February 11, 2015 holding that employers can rely on the federal Faragher/Ellerth affirmative defense to defend against sexual harassment claims brought under the New Jersey Law Against Discrimination (NJLAD). In Aquas v. State of New Jersey, which involved a female corrections officer’s allegations that she was sexually harassed by two officers, the New Jersey Supreme Court held that in claims of negligence/recklessness or vicarious liability for supervisory harassment, an employer’s anti-harassment policy can be held up by the employer as an affirmative defense. Since the US Supreme Court first formulated the Faragher/Ellerth defense, New Jersey’s highest court had not determined whether the defense was valid in defending against NJLAD claims. Now employers are on firmer ground in defending such claims by establishing through a preponderance of evidence that they exercised reasonable care to prevent sexual harassment, and that the employee failed to make use of the avenues afforded by the employer for preventing and correcting harassment (typically a written anti-harassment policy distributed to all employees). Separately, the Aquas decision put forth a broader definition of “supervisor” in the context of NJLAD hostile work environment claims. Now a supervisor includes employees with tangible decision-making authority and employees who are in charge

Resources to assist lawyers practicing in the area of federal public sector employment law. These resources address the laws applicable to federal public sector employees and applicants and the procedures that protect federal employees' rights under major federal civil service and discrimination laws, including the Civil Service Reform Act (CSRA), the Whistleblower Protection Act (WPA), Title VII of the Civil Rights Act of 1964, the Rehabilitation Act (Rehab Act), the Age Discrimination in Employment Act (ADEA) and others.

In Conlon v. InterVarsity Christian Fellowship, the Court of Appeals for the Sixth Circuit held that the First Amendment’s ministerial exception to employment laws applied to a gender discrimination claim by a spiritual director and that the ministerial exception cannot be waived as a matter of law. As a result, the Sixth Circuit affirmed the district court’s dismissal of all of the employee’s claims.

This California Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Richey v. Autonation, Inc., a California Supreme Court decision upholding an arbitration award involving a California Family Rights Act (CFRA) claim. The California Supreme Court found that the arbitration award should stand because it did not prejudice the employee. The Court also relied on CFRA regulations that provide that an employee on CFRA leave has no greater employment rights than if he had worked continuously and not taken leave. The arbitrator had found that Richey’s termination did not violate the CFRA because the employer, a car dealership, had an “honest belief” that the employee had violated the employer’s policy prohibiting outside employment while on leave. The arbitrator issued his decision even though the employer may have been mistaken in believing the employee was working in his restaurant while on leave. In upholding the arbitration award and reversing a California Court of Appeal decision, the California Supreme Court did not address whether an employer can assert a defense that it had a reasonable “honest belief” that an employee was violating company policy while on leave. Instead, the Court based its holding on the arbitration award not having prejudiced the employee. The apparent lack of clarity in the employer’s policy prohibiting outside employment also did not affect the result, as the California Supreme Court found that the

In M&G Polymers USA, LLC v. Tackett, the US Supreme Court held that ordinary principles of contract law must be applied in interpreting collective bargaining agreements that define rights to retiree health benefits. The Supreme Court rejected the inferences adopted by the Sixth Circuit in International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Yard-Man (Yard-Man), concluding that these inferences conflict with ordinary principles of contract law.

A Georgia-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on Georgia law and is intended for use with employees and businesses located in Georgia. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

An Ohio-compliant settlement agreement between an employer and an employee in a single plaintiff employment dispute, including a release of legal claims against the employer. This Standard Document is based on Ohio law and is intended for use with employees and businesses located in Ohio. It is drafted in favor of the employer. It has integrated notes with important explanations and drafting tips.

In Howard v. Pritzker, the US Court of Appeals for the DC Circuit reversed the district court's dismissal of race discrimination complaints brought against the Department of Commerce and held that the six-year statute of limitations in lawsuits against the US does not apply to claims filed under Title VII of the Civil Rights Act of 1964 (Title VII).

In Babcock & Wilcox Construction Co., the National Labor Relations Board (NLRB) announced a new standard for deferring investigations and prosecutions of unfair labor practice (ULP) charges to arbitration awards in factually parallel matters. The NLRB also changed its standards for deferring ULP cases to pending labor arbitrations and pre-arbitration labor grievance settlements. Each of the new standards increases the burdens on parties urging deferral. The new deferral standards will apply prospectively.

In Murphy Oil USA, Inc., the National Labor Relations Board (NLRB) declined to acquiesce to the Fifth Circuit's decision in D.R. Horton, Inc. v. NLRB, and redoubled its stance that requiring employees as a condition of employment to sign an arbitration agreement prohibiting them from filing joint, class or collective actions for employment-related claims violates the National Labor Relations Act (NLRA) by restricting employees' concerted activity. The NLRB also concluded that the employer separately violated the NLRA by attempting to enforce its arbitration agreement with this type of provision by requesting that a federal court dismiss a multi-party litigation and compel the parties to arbitrate about individuals' claims separately.

In Wrocklage v. Dep't of Homeland Sec., the US Court of Appeals for the Federal Circuit vacated the decision of the Merit Systems Protection Board (MSPB) which had sustained the Department of Homeland Security's (DHS) removal of a Customs and Border Protection (CBP) Officer from his job. The Federal Circuit noted that a federal employee that is removed from his government position can appeal his removal to the MSPB and that an agency that wants to remove the employee has the burden of proving that he engaged in conduct that justifies removal. In addition, the Federal Circuit noted that an employee's stipulation to certain facts is not equivalent to confessing to alleged violations and conceding that a particular penalty is appropriate.

In Weber v. Tada, the US Court of Appeals for the Second Circuit, in a summary order, affirmed a district court's grant of summary judgment for an employer on an employee's race discrimination claims. The Second Circuit found that the district court did not err in allowing the employer's use of evidence of an employee's misconduct during his employment, discovered after the employee's termination, to confirm the nondiscriminatory reason for his termination.

In Romulus v. CVS Pharmacy, Inc., the US Court of Appeals for the First Circuit clarified when the 30-day removal period in 28 U.S.C. §1446(b)(3) is triggered for actions under the Class Action Fairness Act (CAFA). In an issue of first impression for the court, the First Circuit held that the 30-day removal period under 28 U.S.C. §1446(b)(3) is triggered only when the plaintiffs' pleadings or other papers provide a clear statement of the damages sought or sufficient information from which damages can be readily calculated, and not when the defendant could have discovered a basis for removal through significant investigation on its own. The court also held in another issue of first impression that an e-mail from the plaintiff to the defendant can constitute an "other paper" under 28 U.S.C. § 1446(b)(3).

In Retail Property Trust v. United Brotherhood of Carpenters & Joiners of America, the US Court of Appeals for the Ninth Circuit held that Section 303 of the Labor Management Relations Act (LMRA), which prohibits unions from engaging in secondary picketing or boycott activities, does not completely preempt all state law property-based tort claims such as trespass and public nuisance related to union conduct that also might be that kind of secondary activity. The decision creates a split between the Ninth Circuit and the US Court of Appeals for the Seventh Circuit, which held that Section 303 has a sufficient preemptive power to convert ordinary state law complaints into federal claims and supplant the state law causes of action.

Practical Law has a variety of resources available to assist both plaintiff and management attorneys in litigating employment discrimination cases. The following selected resources will assist attorneys who litigate private sector employment discrimination cases, including resources on case assessment and preparation, discovery and settlement.

In Muhammad v. Caterpillar, Inc., the US Court of Appeals for the Seventh Circuit affirmed the district court's grant of summary judgment for the employer, holding that where the employer promptly and reasonably responded to an employee's complaints of sexual and racial harassment, and effectively stopped the harassment, the employer was not liable under Title VII of the Civil Rights Act of 1964 (Title VII). The court also held that because sexual orientation is not a protected class under Title VII, an employee cannot maintain a retaliation claim based on a complaint of statements regarding sexual orientation.

This wage and hour update discusses Guyton v. Tyson Foods, Inc., in which the US Court of Appeals for the Eighth Circuit affirmed the summary judgment of the district court, holding that donning and doffing personal protective equipment (PPE) during a meal period is not compensable under the Fair Labor Standards Act of 1938 (FLSA) where the meal period as a whole was for the benefit of the employees. The court also held that when addressing this issue, the effect of the meal period, rather than the cause, is decisive.

This Law Firm Publication by Jackson Lewis P.C. discusses the recent decision in AAMCO Transmissions, Inc. v. Romano, in which a Pennsylvania federal district court enforced the applicability of a forum selection clause contained within a non-compete agreement between the company and former franchisee defendants. The court denied a motion to dismiss and a motion for transfer of venue by the husband and wife defendants, noting that a forum selection clause can survive the termination of a contract which contains survival provisions for other clauses but not the forum selection clause. Although the contract was signed by the husband, but not his wife, the court held that non-signatory third parties who are closely related to a contractual relationship are bound by forum selection clauses in contracts underlying the contractual relationship.

This Law Firm Publication by Stoel Rives LLP discusses the Washington State Court of Appeals recent decision in Becker v. Community Health Systems, Inc., expanding protection in a wrongful termination action based on violation of a public policy. In Becker, the plaintiff former employee sued in superior court for wrongful discharge in violation of public policy. After the trial court denied the employer's motion to dismiss for failure to state a claim under CR 12(b)(6), the employer sought discretionary review with the Court of Appeals. The appellate court found that the plaintiff's complaint adequately alleged the jeopardy element of a wrongful discharge claim under CR 12(b)(6) and that his case could proceed, despite the existence of five statutory options for promoting public policy. The court found the available statutory remedies inadequate.

This Law Firm Publication by Jackson Lewis P.C. discusses the recent decision in Schmitz v. U.S. Steel, in which the Minnesota Supreme Court held that an employee bringing a workers' compensation retaliation claim under the Minnesota workers' compensation retaliation statute has the right to a jury trial. In addition, the court held that if an employer threatens retaliation against an employee for filing for workers' compensation benefits, that employee may state a viable cause of action for retaliation, even if no adverse action actually occurs. Finally, the court held that an employer may not avoid liability for a threat of retaliation by creating a system to investigate complaints of such threats and take corrective action.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the California Court of Appeals' recent decision in Rebolledo v. Tilly's Inc. In this decision, the court held that an employer cannot compel arbitration of a wage and hour claim when the language in the parties' arbitration agreement expressly excluded "any matter within the jurisdiction of the California Labor Commissioner." The appellate court agreed with the trial court that this language removes from arbitration any claim that could have been decided by the California Labor Commission, including statutory wage claims, regardless of whether the claim was actually filed with the labor commissioner.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the California Supreme Court's recent decision in Patterson v. Domino’s Pizza, LLC. The Supreme Court held that a franchisor (Domino's Pizza) did not exhibit the characteristics of an employer because it did not have the right or duty to control employment or personnel matters and was not involved in day-to-day decisions involving hiring, supervision and discipline. Therefore, the franchisor was not vicariously liable for sexual harassment by a supervisor of the franchisee (Sui Juris, LLC) directed toward another franchisee employee.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses new pregnancy discrimination and accommodation amendments to the Illinois Human Rights Act (IHRA). The amendments, signed into law on August 25, 2014 by Governor Pat Quinn, impose an obligation on all employers to provide reasonable accommodations to job applicants and employees affected by pregnancy, childbirth or related conditions. The new protections include specific accommodations such as more frequent bathroom breaks, assistance with manual labor and part-time or modified work schedules, as well as job restoration rights. While an employer cannot force a protected employee to accept an unwanted accommodation, it can require medical proof that the employee needs a requested accomodation, if the request is job-related and consistent with business necessity. Under the new amendments, an employer can only refuse to provide a reasonable accommodation by demonstrating that the accommodation would cause undue hardship on the ordinary operation of business. The amendments take effect on January 1, 2015.

This wage and hour update discusses Garcia v. Tyson Foods, Inc., in which the US Court of Appeals for the Tenth Circuit affirmed the district court's holding in a Fair Labor Standards Act (FLSA) case concerning wage and hour violations and a fee dispute. The Tenth Circuit held that the plaintiffs presented sufficient evidence that they were under-compensated by the employer and that the district court acted within its discretion in setting a fee award that exceeded the award of damages. In addition, the court stated that attorneys' fees can be awarded for unsuccessful claims that are related to a successful claim.

In PSC Custom, LP v. United Steelworkers, Local No. 11-770, the US Court of Appeals for the Eighth Circuit held that a labor arbitrator did not exceed his authority by reducing a discharge for insubordination to a ten-day suspension even though the governing collective bargaining agreement deemed insubordination a termination-worthy offense. The Eighth Circuit reversed a district court's summary judgment vacating a labor arbitration award and remanded the matter to the district court to reinstate the arbitration award.

In Opalinski v. Robert Half International Inc., the US Court of Appeals for the Third Circuit held that district courts, not arbitrators, must decide if parties intended classwide arbitration of overtime claims.

President Obama has signed the Fair Pay and Safe Workplaces Executive Order requiring prospective federal contractors to disclose labor law violations and giving agencies more guidance on how to consider labor violations when awarding federal contracts. The Executive Order also ensures that workers are given the necessary information each pay period to verify the accuracy of their paychecks and eliminates most mandatory arbitration agreements for certain claims at corporations with large federal contracts. The White House has also released a fact sheet providing information about the Executive Order.

On July 16, 2014, Practical Law Company and management attorney Anthony J. Oncidi of Proskauer Rose LLP and plaintiffs’ attorney Andrew H. Friedman of Helmer Friedman LLP presented Hot New Developments in California Labor and Employment Law, a webinar to help practitioners get up to speed on the latest in California labor and employment law with a practical and fast-paced discussion of recent key case law developments and their impact on employers and employees. Topics included class action waivers in employment arbitration agreements, removal to federal court under CAFA and PAGA, wage and hour class actions, whistleblower developments and much more. A short Q&A session followed.Access the recorded webinar here (registration required to view recorded webinar).Click here to download the webinar slides.

This Law Firm Publication by Jackson Lewis P.C. discusses the New Jersey Appellate Division's recent decision in Rodriguez v. Raymours Furniture Company, Inc. In this case, the court upheld a waiver provision in an initial employment application that shortened from two years to six months the statute of limitations for filing retaliation claims under the New Jersey Law Against Discrimination (NJLAD) and the New Jersey Workers' Compensation Act. The court also found that a subsequent application for promotion did not supersede the waiver provision in the initial employment application.

In Big Ridge, Inc. v. N.L.R.B., the US Court of Appeals for the Seventh Circuit vacated two decisions previously issued by the National Labor Relations Board (NLRB), holding that, following the Supreme Court's ruling in Noel Canning, the decisions were invalid because the Board lacked a quorum at the time they were issued.

This Law Firm Publication by Epstein Becker & Green, P.C. discusses Iskanian v. CLS Transportation Los Angeles, LLC. In a 2007 decision, Gentry v. Superior Court, the California Supreme Court established a test to determine the enforceability of a class action waiver in an employment arbitration agreement. In Iskanian, the California Supreme Court's first opportunity to address the issue, the court held that Gentry has been abrogated by the US Supreme Court's 2011 decision in AT&T Mobility, LLC v. Concepcion. Therefore, courts may not refuse to enforce an employment arbitration agreement simply because it contains a class action waiver. The California court also rejected the argument that a class action waiver is unlawful under the National Labor Relations Act (NLRA). However, the court found that an employee’s right to bring a representative action under California's Private Attorneys General Act (PAGA) is not waivable because such claims are not private claims within the scope of the Federal Arbitration Act (FAA). Update: On January 20, 2015, the US Supreme Court denied review of the California Supreme Court's decision.

This Law Firm Publication by Jackson Lewis P.C. discusses a change to Minnesota Statutes Section 363A.33, subdivision 6, effective August 1, 2014. This change will provide Minnesota employees with a statutory right to a jury trial under the Minnesota Human Rights Act (MHRA).

In American Postal Workers Union v. U.S. Postal Service, the US Court of Appeals for the Second Circuit reversed a district court judgment vacating an arbitral award because an arbitrator exceeded his authority under the collective bargaining agreement (CBA). The Second Circuit held that the arbitrator had authority to interpret the CBA, including to apply the doctrine of collateral estoppel to preclude arbitration on grievance claims under the CBA allegedly litigated by the grievant in prior federal agency proceedings. Nothing in the CBA specifically foreclosed the arbitrator from reaching that conclusion and the district court should not have vacated the decision simply because it disagreed with the arbitrator's CBA interpretation.

In Gorman v. Verizon Wireless Texas, LLC, the US Court of Appeals for the Fifth Circuit held that, under Texas law, the plaintiff's failure to exhaust her state administrative remedies and wait to receive her Texas Workforce Commission (TWC) right to sue letter before filing her claims under the Texas Commission on Human Rights Act (TCHRA) was not a jurisdictional defect, but an excusable condition precedent that was cured by her eventual receipt of the letter.

This Law Firm Publication by Jackson Lewis P.C. discusses the California Supreme Court's recent decision in Duran v. U.S. Bank National Association. In Duran, the Supreme Court affirmed the Court of Appeal's reversal of the trial court's award of a $15 million judgment against US Bank National Association in a class action case in which employees alleged they were misclassified as exempt outside salespersons. As the first California appellate decision to apply Wal-Mart Stores v. Dukes, the court decertified the class and held that the trial court denied the defendants due process rights when, based on a skewed sample of class members, it ruled that the entire class was misclassified and excluded relevant evidence necessary for the defendant's affirmative defenses.

In Foster v. Mountain Coal Co., L.L.C., the US District Court for the District of Colorado held that where a severance agreement does not strictly comply with the requirement under the Older Workers' Benefit Protection Act (OWBPA) to affirmatively advise a worker protected by age discrimination law to consult with an attorney before signing it, any Age Discrimination in Employment Act (ADEA) waiver contained in that severance agreement is invalid and cannot be enforced against the employee. UPDATE: On reconsideration, the Court held that the waiver substantially complied with the OWBPA and that the employee's waiver was knowing and voluntary (see Foster v. Mountain Coal Co., LLC, 2014 WL 3747074 (D.Colo., July 30, 2014)).

In Velazquez-Perez v. Developers Diversified Realty Corp., the US Court of Appeals for the First Circuit held, as a matter of first impression, that an employer could be liable under Title VII of the Civil Rights Act of 1964 (Title VII) for negligently permitting a female coworker's discriminatory efforts to cause a male plaintiff's termination. The court also held that, as a matter of first impression, the plaintiff's retaliation claim was subject to the longer 300-day limitations period under a worksharing agreement between the Equal Employment Opportunity Commission (EEOC) and the Puerto Rico Department of Labor and Human Resources.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Tennessee's new employment litigation reform bill HB1954, which goes into effect July 1, 2014. The new law caps the non-monetary damages available for claims brought under the Tennessee Human Rights Act, the Tennessee Disability Act and the Tennessee Public Protection Act to $25,000 to $300,000, depending on the number of employees the employer employs. The new law also eliminates common law claims for retaliatory discharge under the TPPA, requiring plaintiffs to prove the higher causation standard that the alleged whistleblowing was the "sole cause" of termination. It also provides that plaintiffs may not concurrently maintain separate causes of action based on the same operative under the THRA, TDA and TPPA in both state and federal courts. Further, the law eliminates individual supervisor liability under the THRA. The law does not limit damages for back pay or front pay.

In Associated Electric Cooperative, Inc. v. International Brotherhood of Electrical Workers, Local No. 53, the US Court of Appeals for the Eighth Circuit held that last chance agreements (LCA) are binding in arbitration only when they involve the union and resolve pending disciplinary proceedings governed by the grievance and arbitration provisions of the applicable collective bargaining agreement (CBA).

This Law Firm Publication by Jackson Lewis P.C. discusses the recent California, Second Appellate District Court decision in Esteban H. Carmona et al. v. Lincoln Millennium Car Wash Inc. et al. In this case, current and former Spanish-speaking employees sued the car-wash employers alleging wage-and-hour violations. Their employers sought to compel arbitration. The court held that the arbitration agreement is unconscionable and the employer cannot compel arbitration when the employer failed to translate the entire employment agreement, including arbitration, confidentiality and enforceability provisions, into Spanish for its Spanish-speaking employees.

This State Insights Article addresses liability of a hiring entity for torts committed by an independent contractor within the scope of contracted work. State law governs this issue. This article is intended as a guide for private employers in New York. Local or municipal laws may impose different or additional requirements.

This State Insights Article addresses liability of a hiring entity for torts committed by an independent contractor within the scope of contracted work. State law governs this issue. This article is intended as a guide for private employers in Florida. Local or municipal laws may impose different or additional requirements.

This State Insights Article addresses liability of a hiring entity for torts committed by an independent contractor within the scope of contracted work. State law governs this issue. This article is intended as a guide for private employers in Florida. Local or municipal laws may impose different or additional requirements.

In United Steelworkers v. Kelsey-Hayes Co., the US Court of Appeals for the Sixth Circuit held that an employer that unilaterally discontinued group health insurance plans for retirees and replaced them with health reimbursement accounts (HRAs) breached the applicable collective bargaining agreements (CBAs).

In Stockwell v. City and County of San Francisco, the US Court of Appeals for the Ninth Circuit held that on a Federal Rule of Civil Procedure (FRCP) 23(f) appeal from a class certification decision, special force applies to the principle that merits issues may only be considered to the extent necessary to determine whether the FRCP 23 prerequisites have been satisfied.

In Wolfe v. BNSF Railway Company, the US Court of Appeals for the Ninth Circuit held that a union-represented employee's claim under Montana law concerning his railway company employer's alleged conduct leading to a head-on collision between a hi-rail truck the employee was driving and a freight train was independent of the collective bargaining agreement (CBA) and does not require interpretation of the CBA and therefore is not preempted by the Railway Labor Act (RLA).

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Templemire v. W&M Welding, Inc., in which the Missouri Supreme Court lowered the standard of proof for employees alleging retaliation for filing workers' compensation claims. Under the new standard, employees who are retaliated against are only required to prove that their workers' compensation claim was a contributing factor, rather than the exclusive reason, for their retaliation. This decision overturns three decades of Missouri case law and expands potential liability for Missouri employers.

In Remington Lodging & Hospitality, LLC v. NLRB, the employer and union petitioned for review of the same National Labor Relations Board (NLRB) order in the US Courts of Appeals for the District of Columbia and Ninth Circuits, respectively. The DC Circuit transferred the employer's petition for review to the Ninth Circuit to consolidate the matters, holding that the employer lost its chance for obtaining review in its selected forum under 28 U.S.C. § 2112(a) because it, unlike the union, failed to personally transmit a court-and-date-stamped copy of its filed petition to the NLRB within ten days of its filing.

In Russell v. Citigroup, Inc., the US Court of Appeals for the Sixth Circuit affirmed the district court, holding that the plaintiff's arbitration agreement, which covered individual and class action disputes, did not require the plaintiff to arbitrate the class action he had pending against the company before he signed the agreement. The Sixth Circuit found that the language of the agreement and the intentions of the parties indicated that the agreement was meant only to apply to future disputes, and the record's evidence was strong enough to rebut the Federal Arbitration Act's (FAA) presumption of arbitrability.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C., discusses Aid Maintenance Co. v. Realty Maintenance Service, Inc., in which the Rhode Island Superior Court held, as a matter of law, that a cleaning services employer failed to show that its employees tortiously interfered with its current and prospective customers despite showing that its employees simultaneously worked and secretly operated a competing business. The court ruled in favor of the employees, noting that the parties had no noncompete agreements, the employer was unable to quantify its damages and the employees' conduct was ordinary competitive behavior in that industry.

This Law Firm Publication by Jackson Lewis, P.C. discusses a recent amendment to the Nevada state law governing the enforcement of arbitration agreements (Nev. Rev. Stat. § 597.995(1), (2) (2013)). Under the new law, all agreements containing an arbitration clause, except for collective bargaining agreements, must include a specific authorization indicating that the person has affirmatively agreed to the provision, and any arbitration clause that fails to include an authorization is void and unenforceable. The Federal Arbitration Act (FAA) arguably preempts this law, and it is unclear whether courts would apply it retroactively. However, employers should consider modifying their agreements to comply with the law.

In E.E.O.C. v. Sterling Jewelers, Inc., the US District Court for the Western District of New York held that in a Title VII of the Civil Rights Act of 1964 (Title VII) pattern or practice of discrimination claim the district court may examine whether the Equal Employment Opportunity Commission (EEOC) conducted the requisite nationwide pre-suit investigation of employment practices.

In Walthour v. Chipio Windshield Repair, the US Court of Appeals for the Eleventh Circuit held that an arbitration agreement that waived an employee's ability to bring a collective action under the Fair Labor Standards Act (FLSA) was enforceable under the Federal Arbitration Act (FAA).

In Romero v. Allstate Insurance Co., the US District Court for the Eastern District of Pennsylvania denied the EEOC's motion for summary judgment and granted Allstate Insurance Co.'s motion, holding that Allstate did not violate the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA) or the Americans with Disabilities Act (ADA) when, after terminating all of its agents as part of a reduction in force, it required them to sign a release in order to remain with the company as independent contractors.

This Law Firm Publication by Jackson Lewis P.C. discusses the US District Court for the Northern District of Alabama's recent decision in Franks v. Indian Rivers Mental Health Center. The court in Franks dismissed the plaintiff's retaliatory discharge claim under the Family and Medical Leave Act (FMLA), holding collateral estoppel barred reconsideration of the reason for her termination because the referee at an earlier unemployment benefits hearing found the employer had a legitimate reason for discharging her. The court's decision highlights the potential risks involved in failing to appear at, and the findings of, administrative proceedings when the same issues may later be litigated in court.

In Morris v. Affinity Health Plan, Inc., the US Court of Appeals for the Second Circuit released a summary order affirming the district court's holding that the efforts of two plaintiffs who had opted out of a collective action under the Fair Labor Standards Act of 1938 (FLSA) and class action under New York Labor Law (NYLL) are precluded from bringing individual claims by the parties' Joint Stipulation of Settlement and Release.

This Law Firm Publication by Jackson Lewis P.C. discusses the California Court of Appeal's recent decision in Sanchez v. CarMax Auto Superstores of California, LLC, finding an employment arbitration agreement enforceable. The plaintiff argued that the agreement was both procedurally and substantively unconscionable. The court agreed it was procedurally unconscionable because the plaintiff had no real choice whether to sign it. However, because the agreement's substantive provisions were not oppressive or surprising, the court ultimately found the arbitration agreement was enforceable.

This Law Firm Publication by Jackson Lewis P.C. discusses Montague v. AMN Healthcare, Inc., in which a California Court of Appeal held that a medical staffing company was not vicariously liable for its medical assistant who poisoned a coworker while on assignment at a hospital. The court granted the company's summary judgment motion, ruling that the employee's highly unusual and startling actions were outside the scope of her employment and that the plaintiff failed to present any evidence that she had previously complained about the medical assistant or that the poisoning was motivated by prior work-related disputes. The court also dismissed the plaintiff's negligent training claim because the company did train its employees on avoidance of workplace violence and her claim was merely speculative.

In Taylor v. Bailey Tool & Manufacturing Company, the US Court of Appeals for the Fifth Circuit held, in a case of first impression, that federal claims that were time-barred when filed in state court are subject to the Texas relation back rules and cannot be revived by Federal Rule of Civil Procedure (FRCP) 15(c) after removal because the federal rules do not apply until after a case is removed to federal court.

In Castagna v. Luceno, the US Court of Appeals for the Second Circuit held that filing a charge with the Equal Employment Opportunity Commission (EEOC) alleging claims in violation of Title VII of the Civil Rights Act of 1964 (Title VII) does not toll the limitations period for state law tort claims, even when the claims arise from the same facts and circumstances.

A recent case highlights the need for counsel to keep Facebook and other social media in mind when advising clients on a settlement agreement's confidentiality provisions, and to carefully negotiate and craft a tailored confidentiality provision based on the circumstances of each case.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Felix v. Guardsmark, LLC, in which an Oregon district court ruled that employment agreements may impose reasonable limitations on the time period in which an employee may bring state statutory and common law claims against employers, even when that time period is shorter than the statute of limitations. The plaintiff had signed an employment agreement that provided that all state law claims arising from the agreement were time-barred unless filed within six months of their accrual. He then brought claims against his employer under the Oregon anti-discrimination statutes and the Oregon Family Leave Act more than six months after his claims had accrued, but before the statute of limitations periods had expired. The employer moved for summary judgment and the Oregon federal court granted the employer's motion. The court held that a contractual limitation period is enforceable as long as it is reasonable, and, relying on case precendent, held that a six month limitation period was reasonable.

This Law Firm Publication by Jackson Lewis LLP discusses three new developments in New York law. The New York Non-Profit Revitalization Act of 2013 (effective July 1, 2014) limits non-profit corporation types to charitable and non-charitable, requires certain internal governance controls and revises financial reporting and audit procedures. The New York State Commercial Goods Transportation Industry Fair Play Act (effective March 11, 2014) limits use of independent contractors in the commercial goods transportation services industry. Finally, the Public Health Law now prohibits employees of hospitals or residential health care facilities from smoking near those facilities.

This Law Firm Publication by Jackson Lewis P.C. discusses Hawkins v. TACA Int'l Airlines, S.A., in which the California Superior Court dismissed a putative class action against several airlines alleging violations of Section 2810 of the California Labor Code, which prohibits businesses from entering into certain contracts they know or should know do not include enough funds for the contractor to comply with applicable labor laws. The court held that the complaint, filed by employees allegedly owed unpaid wages, overtime and uniform reimbursement by their defunct employer, failed to allege facts sufficient to state a claim. The court stated that mere boilerplate allegations are insufficient, and the complaint must include facts to support the alleged violations, including exactly how or in what manner they occurred.

In ConocoPhillips, Inc. v. Local 13-0555 United Steelworkers International Union, the US Court of Appeals for the Fifth Circuit considered a dispute over whether an employer and a union agreed to permit the arbitrator to decide what issues were arbitrable. The Fifth Circuit affirmed the district court's determination that the union, as the party contending that the employer agreed to submit the arbitrability question to the arbitrator, failed to show that the employer clearly and unmistakably agreed to authorize the arbitrator to decide that issue.

On February 7, 2014, the National Labor Relations Board (NLRB) invited amicus briefs in Babcock & Wilcox Construction Inc. on the question of whether the Board should continue, modify or abandon the Olin/Spielberg standard for deferring to arbitration awards when investigating or prosecuting unfair labor practice (ULP) charges in light of a new standard proposed by the NLRB's General Counsel.

In Kalyanaram v. American Association of University Professors at the New York Institute of Technology, Inc., the US Court of Appeals for the Second Circuit held that an employee's breach of duty of fair representation (DFR) claim accrued when the arbitrator issued the "final award," which remained final despite the issuance of subseqent supplemental awards. The court also held, as a matter of first impression, that a state court action to vacate an arbitration award did not toll the statute of limitations period on a DFR claim.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the New York State Commercial Goods Transportation Industry Fair Play Act, effective March 11, 2014 and enacted to combat worker misclassification. The Act creates a presumption of employee status for a worker who performs commercial goods transportation services for a commercial goods transportation contractor, unless the worker qualifies as an independent contractor or a separate business entity as defined by the Act. Employers subject to the Act will be required to post a “Know Your Rights Notice.” Those who violate the Act will be subject to civil and criminal penalties, personal liability for corporate officers, directors and shareholders, and commercial goods transportation contractors found to have willfully violated the Act may also be debarred from bidding on or performing public contracts.

In Driver v. AppleIllinois, LLC, the US Court of Appeals for the Seventh Circuit clarified that there must be a material alteration in order to grant a repeat petition for permission to appeal under Federal Rule of Civil Procedure (FRCP) 23(f).

In Karzon v. AT&T, Inc., the US District Court for the Eastern District of Missouri held that an arbitration agreement located on a web page and sent by e-mail was enforceable under the Federal Arbitration Act in an employment discrimination action.

In EEOC v. Mach Mining, Inc., the US Court of Appeals for the Seventh Circuit split from the other circuit courts in refusing to recognize a failure-to-conciliate affirmative defense for employers faced with discrimination claims brought by the EEOC.

This State Insights Article addresses employer liability for employee torts. It discusses factors to be considered by courts in California when determining whether an employer is vicariously liable for the tortious acts of its workers.

In a case of first impression for the court, the US Court of Appeals for the Ninth Circuit in In re Wal-Mart Wage & Hour Employment Practices Litigation held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under Section 10 of the Federal Arbitration Act, is unenforceable.

This State Insights Article addresses employer liability for employee torts. It discusses factors to be considered by courts in New York when determining whether an employer is liable for the tortious acts of its workers.

On December 9, 2013, the US Court of Appeals for the Ninth Circuit issued an amended opinion in Richards v. Ernst & Young, LLP, clarifying that it was not deciding the issue of plaintiff's argument relying on the National Labor Relations Board's (NLRB) decision in D.R. Horton, but merely noting that the majority of courts have not deferred to its holding.

In D.R. Horton, Inc. v. NLRB, the US Court of Appeals for the Fifth Circuit, in a 2-1 decision, granted the employer's petition to review the National Relations Board's (NLRB) order invalidating its arbitration agreement's class action waiver provision, but unanimously enforced the NLRB's order requiring that that the employer revise the arbitration agreement's language, so that employees would not reasonably understand that it precluded them from filing NLRB unfair labor practice (ULP) charges.

This State Insights Article addresses the elements of New York tortious interference claims arising from the hire of employees subject to restrictive covenants with a former employer. It discusses factors considered by New York courts to determine whether a subsequent employer is liable for tortious interference by hiring a person subject to a restrictive covenant.

This Law Firm Publication by Davis Wright Tremaine LLP discusses California's newly enacted employment laws that go into effect in 2014, including an increase in the state minimum wage, the new “unfair immigration-related practices" claim and expanded protections for whistleblowers. The new laws, many of which become effective January 1, 2014, will modify actions involving wage and hour, discrimination and leaves of absence claims, as well as other areas of California employment law.

In D.R. Horton, Inc. v. NLRB, the US Court of Appeals for the Fifth Circuit held 2-1 that the National Labor Relations Board's (NLRB) decision in D.R. Horton, Inc. that the employer violated the National Labor Relations Act (NLRA) by requiring employees to sign an arbitration agreement waiving employees' rights to pursue class or collective actions did not give proper weight to the Federal Arbitration Act (FAA).

This State Insights Article addresses employer liability for employee torts. It discusses factors to be considered by courts in Florida when determining whether an employer is liable for the tortuous acts of its workers.

This State Insights Article addresses employer liability for employee torts. It discusses factors to be considered by courts in Illinois when determining whether an employer is liable for the tortious acts of its workers.

This State Insights Article addresses the elements of Florida tortious interference claims arising from the hire of employees subject to restrictive covenants with a former employer. It discusses factors considered by Florida courts to determine whether a subsequent employer is liable for tortious interference by hiring a person subject to a restrictive covenant. This Article is intended as a guide for private employers in Florida. Local or municipal law may impose additional or different requirements.

This State Insights Article addresses the elements of Texas tortious interference claims arising from the hire of employees subject to restrictive covenants with a former employer. It discusses factors considered by Texas courts to determine whether a subsequent employer is liable for tortious interference by hiring a person subject to a restrictive covenant. This Article is intended as a guide for private employers in Texas. Local or municipal law may impose additional or different requirements.

In Pruett v. BlueLinx Holdings, Inc., the US District Court for the Northern District of Georgia held in a case of first impression that whistleblowers bringing a claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) are not entitled to punitive damages or to a jury trial.

This State Insights Article addresses employer liability for employee torts. It discusses factors to be considered by courts in Texas when determining whether an employer is liable for the tortious acts of its workers.

In Tillman v. Macy's, Inc., the US Court of Appeals for the Sixth Circuit held that arbitration was required where an employee failed to opt out of the employer's arbitration agreement even though there was no employee-signed written agreement to arbitrate.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Florida Second District Court of Appeal's decision in Hernandez v. Colonial Grocers, Inc., holding that an arbitration agreement that awards attorneys' fees to the prevailing party in Fair Labor Standards Act (FLSA) disputes is unenforceable. The court reasoned that the fee-splitting provision exposes the plaintiff to potential liability that would not occur if he pursued his FLSA claims in court, and that it would cause a chilling effect that defeats the remedial purpose of the FLSA.

In Ferguson v. Corinthian Colleges, the US Court of Appeals for the Ninth Circuit held that the Federal Arbitration Act (FAA) preempts California's Broughton-Cruz rule, which prohibited claims for public injunctive relief from being arbitrated. The court noted that recent Supreme Court decisions have held that the FAA preempts state prohibitions on the arbitration of specific types of claims.

In Bowers v. The Ophthalmology Group, the US Court of Appeals for the Sixth Circuit held that disqualification of counsel was proper where a prior attorney-client relationship existed between a party and an opposing party's counsel in a "substantially related" matter.

In Scott v. Family Dollar Stores, Inc., the US Court of Appeals for the Fourth Circuit, in a sex discrimination and equal pay class action, reversed the district court's denial of leave to amend the complaint, holding that the denial was based on an erroneous interpretation of Wal-Mart Stores, Inc. v. Dukes, and was therefore an abuse of discretion.

Resources to help employers differentiate between and defend against claims of employment discrimination based on race, color and national origin under Title VII of the Civil Rights Act of 1964 (Title VII) and Section 1981 of the Civil Rights Act of 1866 (Section 1981).

In EEOC v. Abercrombie & Fitch Stores, Inc. the US Court of Appeals for the Tenth Circuit reversed the district court's grant of summary judgment in favor of the Equal Employment Opportunity Commission (EEOC) and held that an employer's duty to provide a religious accommodation is not triggered unless or until an employee or applicant provides explicit notice of a need for one.

In Gold v. New York Life Insurance Company, the US Court of Appeals for the Second Circuit held that the home state exception to federal jurisdiction under the Class Action Fairness Act of 2005 (CAFA) may be waived if a party does not raise it within a reasonable time.

In Camesi v. University of Pittsburgh Medical Center, the US Court of Appeals for the Third Circuit dismissed a consolidated appeal of two Fair Labor Standards Act (FLSA) collective actions for lack of jurisdiction. The court held that the named plaintiffs could not appeal the collective action decertification order on behalf of the opted-in plaintiffs because the named plaintiffs voluntarily dismissed their individual claims. Further, the named plaintiffs no longer had a sufficient interest in the litigation to serve as representatives of the opted-in plaintiffs.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses a new Illinois law, 735 ILCS § 5/2-2301, which creates strict deadlines for defendants settling certain civil actions. Among other things, employers settling "tort actions involving a claim for money damages" (including claims for retaliatory discharge, tortious interference, defamation and infliction of emotional distress) will be required to deliver releases within 14 days after written confirmation of an agreement to settle, and pay settlement sums within 30 days after receiving the executed release from the plaintiff, unless the parties agree otherwise. An employer's failure to comply will entitle the plaintiff to seek judgment in the amount of the settlement, plus the costs and interest. This law becomes effective January 1, 2014.

California Governor Jerry Brown recently signed Senate Bill No. 462 (SB 462), which amends Section 218.5 of the Labor Code to make an award of attorneys' fees and costs in compensation-related litigation where the prevailing party is not an employee contingent on the court finding the employee brought the action in bad faith.

This Law Firm Publication by Jackson Lewis LLP discusses the New Jersey Supreme Court's recent holding in Cole v. Jersey City Medical Center that an employer waived its contractual right to arbitration by failing to raise arbitration as an affirmative defense until the eve of trial. The defendant employer in Cole did not raise the defense in pleadings, filed a motion for summary judgment and finally asserted the defense three days before the scheduled trial date. The court noted questions of waiver must focus on the totality of the circumstances in each case, and described seven factors for courts to analyze when deciding the issue of waiver, including the delay in making the arbitration request, the filing of any motions and their outcomes, and the extent of discovery conducted.

In Richards v. Ernst & Young, LLP, the US Court of Appeals for the Ninth Circuit reversed the district court's denial of a motion to compel arbitration of state wage and hour claims. The Ninth Circuit also vacated the district court's order certifying a class because the arbitration agreement precluded class arbitration and opined that courts should not defer to the National Labor Relations Board's (NLRB) decision in D.R. Horton.

In Urbino v. Orkin Services of California, Inc., the US Court of Appeals for the Ninth Circuit vacated the district court's order denying the plaintiff's motion to remand the case to state court finding that the plaintiff's claims under California's Private Attorneys General Act of 2004 (PAGA) could not be combined with that of other aggrieved employees to meet the $75,000 threshold necessary for federal diversity jurisdiction since the claims were not common and undivided.

This Law Firm Publication by Jackson Lewis LLP discusses the North Dakota Supreme Court's decision in SolarBee, Inc. v. Walker, in which the court upheld a judgment for $621,800 against two employees found to have breached their employer's non-compete agreement while they were still employed. This decision is a reminder that employers are not completely without remedies in North Dakota, a state that generally bars restraints on competition or solicitation after employment ends.

This Law Firm Publication by McLane, Graf, Raulerson & Middleton, PA discusses the August 12, 2013 decision in Lipsitt v. Plaud, where the Massachusetts Supreme Judicial Court found that the Massachusetts Wage Act does not pre-empt a plaintiff's ability to bring other common law claims arising out of the non-payment of wages. The holding is viewed as a victory for employees who wish to pursue claims related to employee wage actions but may not pursue such claims within the Wage Act's three year statute of limitations provision.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses California's recently signed law, Senate Bill 292, which clarifies that an individual who sues for sexual harassment under state law need not prove that the sexually harassing conduct was motivated by sexual desire. The law overturns in part the June 6, 2011 California Court of Appeals decision of Kelley v. Conco Companies.

The US District Court for the Middle District of Tennessee held in Stewart, et al. v. CUS Nashville, LLC, et al. that bouncers at various Coyote Ugly saloons sufficiently interacted with guests to qualify as tip pool beneficiaries under the Fair Labor Standards Act (FLSA).

On August 5, 2013, the United States Court of Appeals for the Second Circuit in Dejesus v. HF Management Services, LLC, further clarified employee classification and overtime pleading standards in a wage and hour suit brought under the Fair Labor Standards Act (FLSA) when it affirmed a district court's decision to dismiss the plaintiff's complaint. Although the Second Circuit affirmed dismissal based on the plaintiff's failure to demonstrate that she worked more than 40 hours in a given work week, the court provided guidance to lower courts on establishing employee status under the FLSA. It stated that the plaintiff adequately plead her status as an employee under the FLSA because she effectively alleged where she worked, the duties of her position and the dates of her employment.

The US Court of Appeals for the Second Circuit held in Sutherland v. Ernst & Young LLP, that a provision in an employment contract waiving the class action vehicle for wage and hour actions was lawful in light of recent Supreme Court precedent on the issue and in the absence of a contrary command from Congress regarding actions under the Fair Labor Standards Act (FLSA).

On August 1, 2013, the United States Court of Appeals for the Seventh Circuit in Lippert Tile Company, Inc. v. Int'l Union of Bricklayers affirmed enforcement of an arbitration award requiring that a company using non-union tile installers provide those workers with union benefits under the collective bargaining agreement (CBA) that a union has with an affilliated company based on a finding that the companies constitute a single employer.

In Hill v. Tangherlini, the US Court of Appeals for the Seventh Circuit clarified that "self-serving" evidence can create triable issues of material fact and found that the district court erred by discrediting testimony and affidavits offered by a plaintiff suing under Title VII of the Civil Rights Act of 1964 (Title VII) for race and gender discrimination and retaliation. However, after considering the evidence, the Seventh Circuit affirmed summary judgment for the employer because the plaintiff still could not make out a prima facie case of discrimination or retaliation.

On July 31, 2013, two courts of appeals confirmed arbitrators' discretion to exclude evidence. The US Court of Appeals for the First Circuit in Doral Financial Corp. v. García-Vélez and the US Court of Appeals for the Second Circuit in LJL 33rd Street Associates LLC v. Pircairn Properties, Inc. refused to vacate arbitration awards based on arbitrators' decisions to exclude evidence at hearing. Practitioners should be aware that appellate courts are hesitant to find arbitral misconduct under 9 U.S.C. § 10(a)(3).

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Happy Nails & Spa of Fashion Valley, L.P., et al. v. Julie A. Su, where a California Court of Appeal held an employer in a wage and hour suit need not relitigate the issue of worker classification if the employer had previously won the issue in a related claim against a state agency. In this case, the employer successfully argued its workers were independent contractors during a compliance action against the Employment Development Department (EDD) in 2004, and could rely on the doctrine of collateral estoppel in a 2008 litigation against the California Division of Labor Standards Enforcement (DLSE) in 2008.

This Law Firm Publication by Spencer Fane Britt & Browne LLP discusses Hedrick v. Jay Wolfe Imports I, LLC, where the Missouri Court of Appeals, on July 30, 2013, held that public policy did not prohibit a Honda car dealership from terminating an employee after his live-in girlfriend bought a Honda at another dealership. The court upheld a trial court's finding that the public policy exception to the at-will employment doctrine should not be expanded to cover a third party's commercial transactions.

This law firm publication by Jackson Lewis LLP discusses the Minnesota Supreme Court's decision to supply a six-year statute of limitations period for wrongful discharge suits under the state's Drug and Alcohol Testing in the Workplace Act (DATWA) since the statute does not contain a limitations provision. The decision, which reversed a Minnesota Court of Appeals' ruling, clarifies employers' potential exposure for violations of DATWA.

In Mortgage Bankers Ass'n v. Harris, the US Court of Appeals for the District of Columbia Circuit vacated a 2010 Department of Labor (DOL) "Administrator's Interpretation" which stated that mortgage loan officers do not qualify as bona fide administrative employees under the Fair Labor Standards Act of 1938 (FLSA) and withdrew a 2006 DOL opinion letter finding the opposite. The DC Circuit found that the DOL must engage in notice and comment requirements before it could revise an earlier definitive interpretation.

The National Labor Relations Board (NLRB) held in Albertson's, LLC that an employer violated the National Labor Relations Act (NLRA) by conducting employee interviews to prepare for an unfair labor practice (ULP) proceeding several months after providing the employee with Johnnie's Poultry warnings, or assurances against reprisals.

This Law Firm Publication by Jackson Lewis LLP discusses the New York Court of Appeals decision in In Re Starbucks, holding that Starbucks' tip splitting practices did not violate New York law. The court held that only employees with "meaningful authority" over subordinates may not participate in a tip splitting arrangement under New York Labor Law § 196-d. The court also held that New York law does not provide an affirmative right for eligible employees to participate in a tip pool, so, with some exceptions, employers may exclude otherwise eligible employees from the tip pool.

In University of Texas Southwestern Medical Center v. Nassar, the US Supreme Court held in a 5 to 4 decision that an employee alleging Title VII of the Civil Rights Act of 1964 (Title VII) retaliation must prove that a retaliatory motive on the part of his employer was the but-for cause of the negative employment action and not just a motivating factor under the lessened causation test.

The US Supreme Court issued a 5-4 decision in Vance v. Ball State University, ruling that an employee is a supervisor for purposes of Title VII of the Civil Rights Act of 1964 vicarious liability if he is empowered by the employer to take tangible employment actions against the alleged victim.

This Law Firm Publication by Foley Hoag LLP discusses the Massachusetts Supreme Judicial Court's June 17, 2013 decision in Depianti v. Jan-Pro Franchising International, Inc. The court held that an employee is not barred from bringing a wage claim in court if he fails to first exhaust administrative remedies by filing a complaint with the Attorney General. The court also held that there does not need to be a contract between the employer and the person claiming misclassification for that person to assert a claim that he was misclassified as an independent contractor. This decision interprets the Wage Act in favor of employees and makes it easier for them to bring lawsuits under the Act.

In Oxford Health Plans LLC v. Sutter, No. 12-135, 2013 WL 151235 (U.S. June 10, 2013), the US Supreme Court considered an application to vacate an arbitrator’s decision, that allowed class arbitration, on the basis of a misinterpretation of the parties’ intent under section 10(a)(4) of the Federal Arbitration Act (FAA).

In EEOC v. Memphis Health Center, Inc., the US Court of Appeals for the Sixth Circuit held a government plaintiff may be liable to a defendant for attorneys' fees under the Equal Access to Justice Act (EAJA) if the government's claim as a whole is not substantially justified. With this case of first impression, the Sixth Circuit becomes the fifth appellate court to address the government's potential financial liability to a defendant under the EAJA.

An expert Q&A with Douglas Darch of Baker & McKenzie LLP on the implications for employers of the US Supreme Court's decision in Genesis Healthcare Corp. v. Symczyk, holding that an FLSA collective action was properly dismissed after the sole plaintiff's individual claims were rendered moot by the defense's offer of judgment under Federal Rule of Civil Procedure (FRCP) 68.

This Law Firm Publication by Holland & Hart LLP discusses Colorado's Job Protection and Civil Rights Enforcement Act of 2013, signed into law by Governor John Hickenlooper on May 6, 2013. The new law, effective January 1, 2015, allows employees to recover compensatory and punitive damages against Colorado's small employers (with 1-14 employees), along with attorneys' fees and costs, back pay, front pay, interest and other potential relief. The law caps damages awards based on the size of the employer (1-4 employees, 5-15 employees and more than 15 employees). The new law also eliminates the age 70 cutoff for age discrimination claims brought under Colorado law.

In Harrell v. American Red Cross, the US Court of Appeals for the Seventh Circuit ruled that a district court should have ordered rescission of all of an employer's unilateral changes to bargaining unit employees' terms and conditions of employment after finding that the union was entitled to temporary injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA).

An expert Q&A with Timothy P. Harkness and Dana L. Post of Freshfields Bruckhaus Deringer US LLP on the ethical considerations involved in using social media to communicate with or gather information about a plaintiff employee, former employee or applicant in employment litigation.

In Kiobel v. Royal Dutch Petroleum Co., the US Supreme Court held that the Alien Tort Statute (ATS) does not give district courts the authority to recognize a cause of action for violations of the law of nations occurring in a foreign country.

In Genesis Healthcare Corp. v. Symczyk, the US Supreme Court held in a 5 to 4 decision that a Fair Labor Standards Act (FLSA) collective action was properly dismissed for lack of subject matter jurisdiction when the plaintiff's individual claims became moot, leaving her with no personal interest in representing other unnamed, putative claimants in the action. The decision highlights, but does not resolve, a circuit court split on the question of whether a plaintiff's rejection of a Federal Rule of Civil Procedure (FRCP) 68 offer of judgment that fully satisfies her claims renders the claims moot.

In Busk v. Integrity Staffing Solutions, Inc., the US Court of Appeals for the Ninth Circuit held that conflicting class certification mechanisms under the Fair Labor Standards Act (FLSA) and Federal Rule of Civil Procedure (FRCP) 23 do not warrant dismissal of plaintiffs' state law claims. While the Ninth Circuit's decision is in line with the circuit courts that have considered this issue, practitioners should note that district courts in other circuits remain divided.

In Bechtel v. Administrative Review Board, the US Court of Appeals for the Second Circuit clarified the burden-shifting framework applicable to whistleblower retaliation claims under the Sarbanes-Oxley Act of 2002 (SOX). The Second Circuit denied the petitioner employee's petition for review, holding that the Administrative Review Board (ARB) did not act arbitrarily or capriciously, or abuse its discretion, when it affirmed the decision of the Administrative Law Judge (ALJ) dismissing the petitioner's complaint.

In Supply Technologies, LLC, the National Labor Relations Board (NLRB) held that an employer's mandatory arbitration policy governing employment disputes for nonunion workers would be reasonably construed to interfere with employees' Section 7 rights in spite of a disclaimer allowing employees to bring and participate in government actions.

Since the US Supreme Court's 2011 decision in AT&T Mobility LLC v. Concepcion, courts have taken a variety of approaches to enforcing employment arbitration agreements. This article analyzes the state of post-Concepcion case law in California and in other parts of the country.

In EEOC v. KarenKim, Inc., the US Court of Appeals for the Second Circuit held the district court abused its discretion by denying the Equal Employment Opportunity Commission (EEOC)'s motion for injunctive relief against a terminated sexual harasser. The court found there was sufficient danger harassment could continue despite the harasser's termination where he was in a romantic relationship with the defendant company's owner and that relationship was the primary reason the harassment had been allowed to continue.

California Governor Jerry Brown signed multiple employment-related bills into law in September 2012, covering such areas as wage payment laws and notification requirements, anti-discrimination laws and social media laws.

The US Court of Appeals for the Tenth Circuit ruled in Communication Workers of America v. Avaya, Inc. that a district court improperly presumed that a union, which had a collective bargaining agreement (CBA) and a neutrality agreement with the employer, was entitled to arbitrate a dispute about the managerial status of employees it intented to organize. The Tenth Circuit held that the court should have applied a more searching judicial review to determine the dispute was not arbitrable.

The US Court of Appeals for the Second Circuit ruled in Noel v. New York State Office of Mental Health that awards of back and front pay qualify as taxable wages, and that employers must withhold income and Federal Insurance Contributions Act (FICA) taxes when paying a judgment for back and front pay.

This Law Firm Publication by Jackson Lewis LLP discusses Truly Nolen of Am. v. Superior Court, in which a California Court of Appeal vacated a trial court's order directing an employer and employee to resolve wage and hour claims by class arbitration. In doing so, the court found that the California Supreme Court's decision in Gentry v. Superior Court, which held that class action waivers are void in certain circumstances, remains valid in spite of language in recent US Supreme Court opinions that appeared to call Gentry's reasoning into question.

This Law Firm Publication by Jackson Lewis LLP discusses California's Senate Bill 1038, which was recently signed by Governor Brown. Effective January 1, 2013, the new law will, among other things, eliminate the California Fair Employment and Housing Commission (FEHC). The FEHC's duties of rulemaking and administrative adjudication of discrimination claims will be mainly assumed by the Department of Fair Employment and Housing (DFEH), which will include a Fair Employment and Housing Council.

This Law Firm Publication by Jackson Lewis LLP discusses Williams v. Smith, in which the Minnesota Supreme Court held that a prospective employee, an assistant coach of a college basketball team, could not assert a claim for negligent misrepresentation against the team's head coach, who offered and later rescinded a job opportunity. A negligent representation claim is unavailable where a prospective employment relationship is negotiated at arm's length between sophisticated business persons and does not involve a professional, fiduciary or other special legal relationship. In Williams, the coaches engaged in an arm's length negotiation, and therefore the head coach did not owe a duty of care to the assistant.

This Law Firm Publication by Jackson Lewis LLP discusses the California Court of Appeal's decision in Nelsen v. Legacy Partners Residential, Inc., ruling that an employee must arbitrate her individual wage and hour claims against her employer where an arbitration agreement between the parties was not unconscionable or in violation of public policy. Notably, the court rejected the employee’s argument that the agreement was unenforceable because it violated federal public policy under the National Labor Relations Board's (NLRB) decision in D.R. Horton. The court found that the issues in D.R. Horton were outside the expertise of the NLRB, that the holding had been rejected by at least two other federal courts, and that there was no evidence that the plaintiff in Nelsen was covered by the National Labor Relations Act (NLRA).

In Martin v. Spring Break '83 Productions, L.L.C., the US Court of Appeals for the Fifth Circuit held that an employer and a labor union could enter a private unsupervised settlement agreement releasing union-represented employees' substantive claims under the Fair Labor Standards Act (FLSA). The settlement was permissible because there was a bona fide dispute over hours worked, and the union addressed, rather than waived, the employees' substantive FLSA claims in the settlement.

This Law Firm Publication by Wiggan and Dana LLP discusses L and V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., in which the Connecticut Appellate Court held that AAMCO Transmissions, Inc., a franchisor of automotive repair centers, was not vicariously liable for torts allegedly committed by an AAMCO franchisee under theories of agency or apparent authority. An agency relationship did not exist between AAMCO and its franchisee because AAMCO did not control the franchisee's business. More importantly, AAMCO was not liable under the theory of apparent authority because Connecticut courts have not applied that theory to hold a principal liable for torts committed by a person held out as the principal's agent.

An expert Q&A with Stephen C. Mitchell of Fisher & Phillips LLP regarding guidance from the Equal Employment Opportunity Commission (EEOC) on employers' use of criminal history information in decisions about employment.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Arizona Supreme Court's recent decision in Engler v. Gulf Interstate Engineering, Inc., which held that an employer was not vicariously liable for its employee's off-duty negligent conduct, a car accident during an out-of-town assignment. The accident occurred while the employee was driving back to his hotel after dinner. The employee was not subject to the employer's control at the time of the accident because the employee was not serving the employer's economic interests. Therefore, the employer was not vicariously liable to the victim of the accident. This case is significant for employers because the Arizona Supreme Court declined to extend a recent Arizona Court of Appeals decision, where the court found that an Arizona police officer was acting in the course and scope of his employment when he crashed his state-owned vehicle into the plaintiff's car while going to lunch during an out-of-town business trip.

The US Court of Appeals for the Tenth Circuit held in Lederman v. Frontier Fire Protection, Inc. that the preponderance of the evidence standard applies to determine whether an employee is exempt under the Fair Labor Standards Act (FLSA). The court's decision clarifies the appropriate evidentiary standard in light of previous Tenth Circuit decisions that discussed a "plainly and unmistakably" legal standard.

This Law Firm Publication by Jackson Lewis LLP discusses the California Supreme Court's decision in Coito v. Superior Court, ruling that at least a qualified work product protection applies to: Recordings of witness interviews conducted by investigators employed by counsel. The identity of witnesses from whom counsel obtained statements. The Court also held that an absolute privilege may apply in certain circumstances. Based on this case, witness statements in employment cases may be entitled to qualified or absolute work product protection.

This Law Firm Publication by Jackson Lewis LLP discusses Pulli v. Pony Int'l, in which the California Court of Appeal, Fourth District held that an employer may require an employee to sign an arbitration agreement waiving the employee's right to a jury trial. The court explained that the law at issue in the case, Section 206.5 of the California Labor Code, prohibits employers from obtaining waivers of wage claims, but that it does not prohibit employers from requiring employees to sign arbitration agreements waiving the right to a jury trial.

In Arizanovska v. Wal-Mart Stores, Inc., the US Court of Appeals for the Seventh Circuit affirmed summary judgment for the employer in a pregnancy and national origin discrimination and retaliation suit. In so holding, the Seventh Circuit found that forcing a pregnant employee to take an unpaid leave of absence due to her inability to perform essential job functions constitutes a materially adverse employment action.

In Okwu v. McKim, the US Court of Appeals for the Ninth Circuit held that public employees cannot use Section 1983 of Title 42 of the US Code to vindicate rights under Title I of the Americans with Disabilities Act (Title I) that were allegedly violated by a public employer. The comprehensive remedial scheme provided by Title I manifests Congress's intent to preclude remedies under Section 1983 for alleged violations of Title I substantive rights.

This Law Firm Publication by Jackson Lewis LLP discusses a California Court of Appeal's decision in Iskanian v. CLS Transportation upholding a class action waiver in an arbitration agreement and distinguishing the National Labor Relations Board's (NLRB) decision in D.R. Horton. The court followed AT&T Mobility LLC v. Concepcion, noting Concepcion made no exception for employment-related disputes in reiterating the general rule that arbitration agreements must be enforced according to their terms. The court also held the arbitration agreement barred the plaintiff from bringing claims under the California Private Attorney General Act (PAGA).

The US Court of Appeals for the Fifth Circuit held in Reed v. Florida Metropolitan University, Inc. that an arbitrator who found that the parties' arbitration agreement permitted class arbitration, where there was no contractual or legal basis for doing so, exceeded his powers. The Fifth Circuit held that the arbitration award must be vacated.

The US Court of Appeals for the District of Columbia Circuit clarified the standard for proving discrimination in single-motive cases under Title VII of the Civil Rights Act of 1964. The court held in Ponce v. Billington that plaintiffs need not prove discrimination was the sole cause of an employer's adverse employment action to prevail on a Title VII claim.

The US District Court for the Northern District of California recently upheld an arbitration agreement containing a class action waiver, holding that AT&T Mobility LLC v. Concepcion, which articulates a strong federal policy of enforcing arbitration agreements, controls. The court distinguished D.R. Horton, Inc., finding the National Labor Relations Act (NLRA) does not bar enforcement of agreements to arbitrate non-NLRA claims on an individual basis.

This Law Firm Publication by Constangy Brooks & Smith, LLP, discusses Melia v. Zenhire, Inc., in which the Massachusetts Supreme Judicial Court identified the circumstances when an out-of-state forum selection clause in an employment contract violates the Massachusetts Wage Act. In Melia, the court held that a forum selection clause is a special contract disallowed by the Wage Act when the employee's claim is covered by the Wage Act, the court of the forum state would not apply Massachusetts law, and the employee would be deprived of a substantive right under the Wage Act.

In Townsend v. Benjamin Enterprises, Inc., the US Court of Appeals for the Second Circuit decided two issues of first impression for the Second Circuit regarding Title VII of the Civil Rights Act of 1964 (Title VII). First, Title VII's anti-retaliation provision does not protect employees who participate in their employers' internal investigation of discrimination. Second, employers cannot assert the Faragher-Ellerth defense to hostile work environment claims when the alleged discrimination involves a proxy or alter ego of the employer.

This Law Firm Publication by Ford & Harrison LLP discusses the Texas Supreme Court's decision in In re Frank Kent Motor Company d/b/a Frank Kent Cadillac. In that case, an at-will employee argued that his waiver of a jury trial was invalid because he was coerced into signing it when his employer threatened to terminate his employment if he did not sign it. The Texas Supreme Court upheld the jury trial waiver, holding that the employer's threat was not coercion that would invalidate the jury trial waiver because the employer had a legal right to fire the at-will employee for almost any reason, including the employee's refusal to accept new employment terms.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Arizona Court of Appeals' recent holding in The Salvation Army v. Bryson, that attorney-client privilege under Section 12-2234 of the Arizona Revised Statutes covers any communications between a corporate lawyer and corporate employees made to obtain information in order to provide legal advice to the entity, employer or employee. The decision confirms that the Arizona legislature intended to expand attorney-client privilege beyond communications regarding a corporate employee's own conduct in the scope of his employment.

This Jackson Lewis, LLP memorandum discusses Chaaban v. Wet Seal, in which the defendant employer made an offer of compromise under Section 998(c) of the California Code of Civil Procedure, which the plaintiff rejected. The employer prevailed at trial and sought costs, including fees paid to plaintiff's expert witness. In a case of first impression, the California Court of Appeal held that a prevailing defendant can recover fees paid to the plaintiff's expert witness, if the plaintiff fails to achieve a more favorable judgment or award after rejecting the defendant's statutory offer of compromise.

In LaVoice v. UBS Financial Services, Inc., the US District Court for the Southern District of New York granted a motion to compel arbitration of the plaintiff's Fair Labor Standards Act (FLSA) and state wage and hour claims despite a class and collective action waiver. The court found AT&T Mobility v. Concepcion, precluded LaVoice's argument that the FLSA creates an unwaivable right to collective actions. Notably, the court rejected the argument that D.R. Horton, Inc. supported a contrary reading of AT&T Mobility.

In Donald v. Sybra, Inc., the US Court of Appeals for the Sixth Circuit held that Family and Medical Leave Act (FMLA) interference claims should be analyzed under the McDonnell Douglas burden-shifting standard typically applied to discrimination claims. This case is particularly noteworthy because at least two circuit courts (First and Seventh) have expressly rejected application of the burden-shifting analysis to these claims in favor of a more employee-friendly standard.

The National Labor Relations Board (NLRB) recently held that requiring employees, as a condition of employment, to sign an arbitration agreement prohibiting them from filing collective or class actions for employment-related claims violates the National Labor Relations Act (NLRA). In its January 3, 2012 decision in D.R. Horton, Inc., the NLRB also held that its decision does not conflict with the Federal Arbitration Act (FAA) and distinguished AT&T Mobility v. Concepcion.

This Jackson Lewis LLP memorandum discusses the Washington Supreme Court's September 1, 2011 decision in Cudney v. ALSCO holding that employee tort claims alleging wrongful discharge in violation of public policy may be brought only in limited circumstances, where the public policy at issue is not adequately promoted through alternative mechanisms, such as statutory remedies or criminal sanctions.

This Law Firm Publication by Ford & Harrison LLP discusses a unanimous decision by the New Jersey Supreme Court on June 15, 2016 holding that employment agreements reducing the time by which employees may file discrimination claims under the New Jersey Law Against Discrimination (LAD) are unenforceable. In Rodriguez v. Raymours Furniture Co., the court found that shortening the time period below the LAD's two-year statute of limitations and having employees waive the statute of limitations will reduce the number of discrimination claims being filed, increase the number of frivolous claims, and interfere with both the plaintiff's interest in pursuing his claims and the public's interest in preventing workplace discrimination.

This Law Firm Publication by Ford & Harrison LLP addresses Sandquist v. Lebo Automotive, Inc., in which the California Supreme Court affirmed the appellate court's holding that an arbitration agreement's terms determine whether a court or an arbitrator should decide if the agreement permits class claims. In addition, the California Supreme Court held that any ambiguities should be resolved in favor of the non-drafting party.

This Law Firm Publication by Jackson Lewis P.C. discusses the recent decision in Cuevas v. Wentworth Group, an employment discrimination case brought under the New Jersey Law Against Discrimination (LAD). The New Jersey Supreme Court held that plaintiffs bringing "garden variety" emotional distress claims may support their claims with their own testimony or that of friends and family, rather than with expert or treating doctor testimony. The Court also held that past precedent and the trial judge's own experience are no longer relevant considerations in a post-trial application to reduce the jury's emotional distress award.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. addresses a number of recent amendments to California's Labor Code Private Attorneys General Act (PAGA). These amendments were included in SB 836, recently passed as part of Governor Jerry Brown's budget. The changes give the California Labor and Workforce Development Agency (LWDA) more time to investigate and issue citations for Labor Code violations, increased oversight over PAGA actions, an opportunity to object to proposed PAGA settlements, and more funds to investigate and issue citations for Labor Code violations.